Delay In The Disposal Civil Suits Bangladesh Perspective

 INTRODUCTION

Delay is a very harmful matter for civil suits in Bangladesh. Time consumed for the final disposal of cases from the date of its institution is too long. 10-15 years in many instances. This delay has been causing serious harassment to the litigant public. It has come to many mind that the present system of administration of justice, a foreign transplant, is unsuited to the genius of our people, its procedures[1] are dilatory and cumbersome, not advancing the cause of substantial and quick justice.

The situation is serious indeed and calls for careful consideration of the reasons for this delay. The system of administration of justice as obtaining in Bangladesh, both as regards the hierarchy of courts and the procedures followed by them, is the result of an evolutionary process the present system coming down from hundred years back and the people including the unlettered villagers have become used to its formalities and technicalities. Why then the people are losing confidence in the system is the question of the day. The answer is not far to seek.

The procedure delay in disposal of cases, may account for much of the erosion of confidence in the system. But no particular point in tngladesh

he administration of justice alone can be said to be the source of delay. It starts right from the beginning and endorse of the end. In decree of execution the uncertainty looms unending to the woe and worry of litigants- winners or losers. Through the agony of trial and tribulations emerge some causes which were common to the courts of all levels and which are peculiar to the court of different tiers. In every step of trial, however, there are some defects accounting for delay which are though inherent have yet become part of the system.

The justice delivery system in our country is time consuming and unaffordable to the poor people to some extent. The existing regime of civil suits in Bangladesh is governed by the Code of Civil Procedure enacted in 1908. Since then little change has taken place. The legal system may very well be described as admirable but at the same time slow and costly and entails an immense sacrifice of time, money and talent. The causes of backlog and delay of disposal of cases are systematic and profound. The legal system’s failure to impose the necessary discipline at different stages of trial of cases allows dilatory practice to protect the case life. A case usually takes about ten to twenty years to disposed of. It is learnt that nearly one million cases are now pending in different courts of the country. The break-up of this backlog is: 4,946 cases in the Appellate Division of the supreme court; 1,27,244 cases in the High court Division, 3,44,518 civil cases and 95,689 criminal case in the judges court and 2,96,862 cases with Magistrate courts and 99,004 cases with Metropolitan Magistrate courts. After years of controversy and frustration of the problem of administration of justice system, a new device needs to be chalked out. A great deal of delay occurs in summon service, processes filed by the parties are not promptly sent to the nazir for service; unduly long adjournments are frequently granted as a matter of course for filing deficit court fees on plaints, process-fees, cost, commissions etc. Tardy practices are made in filing written statement; amendment of pleading even at belated stage; substitution of parties also causes delay of disposal of suits. Want of skilled lawyer and indifferent court is also a contributing device for causing delay of disposal of suits. Absence of witnesses in the criminal cases even after repeated issuance of summons and warrants; driving out of the witnesses of the criminal case by the defense side in a collusive venture and connivance; absence of prosecutor and defiance lawyer; non-production of accused persons by the jail authority are the key component hindering speedy disposal of cases. Failure of producing the accused persons by the jail authority outside the districts on grounds of their involvement and being wanted in other criminals of the said districts for shortage of police escorts; ascendance of the accused persons and their voluntary surrender before the court in the middle of trial seeking for recalling of the witnesses already examined which cause the delay. Splitting up of the criminal records for simultaneous trial of the adult as well as juvenile offenders at two separate court; frequent hearing to the bail matters for the same accused persons; non-appearance of the magistrate recording the confessional statements of the accused persons even after repeated issuance of summons and processes; non-arrival of the Investigation officer even after exhaustion of all the process; non-compliance of warrants by the police personnel; non-appearance of the expert witnesses for proof of the expert reports and dilatory tactics of the defense lawyer etc are the usual components of delay in the disposal of criminal cases. These are the common causes of delay, which are generally faced by the Sessions, Special and Tribunal Judges during the trial of criminal cases.

Delay in civil suits is a very big problem in our country. The main cause of delay is outdated laws, corruption, political cause, separation of judiciary, low quality of judges and court staff, lack of indignation, ineffective law enforcement authority, shortage of manpower, lack of legal awareness, social acceptance of justice delivered, influence of money and power etc. We must recover from this problem law commission in Bangladesh can make report for avoid delay in civil suits. ADR can doing a great role to avoid delay in Bangladesh. ADR can make a great role to avoid delay in civil suits. ADR means is a system of shalish or arbitration by which delay in civil suits can be removed.

SOURCES OF DELAY

In any literature on the legal system of Bangladesh, delay in dispensing justice is considered as the number one problem that hinders the access to justice. “There are some civil cases which were filed during the Pakistani regime and are still under trial,”

Lamented one bureaucrat in an interview. Too much time often results into too much money. There are many reasons for this delay. First, leakage of civil and criminal procedure codes allows the cases to be lengthy. Lawyers in some cases also play their part in delay because more delay will ensure more earning for them[2] .

Second, the lack of a sufficient number of judges and courts force a judge to deal with five to six thousand cases in a year. Thirdly, even after justice is delivered, it cannot been forced until the confrontational parties receive a written copy of the judgment. Are searcher found out, “in some cases, the judges ordered immediate issuance of the court order and signed it at once but in most cases, this whole process took a lot of time”[3]. Fourthly, criminal cases are delayed due to two reasons: the delay in submission of police report and the delay in court. Police takes long to submit an investigation report due to shortage of manpower and excessive workload as well as corruption in a police station. When a final charge sheet is submitted to the court, it becomes the place where justice is stuck. “In one year, 40% to 60% of the cases are charge sheeted but only 25% of these cases are put on trial. Following this rate every year cases are accumulated causing a huge backlog”, informed a police official[4] . Fifthly, dissolution of a bench stops the procedure of the cases of that bench. Later, when that particular bench gains its jurisdiction again, the suspended cases are re-opened from the very first stage. As a result, justice is not delivered in time and a backlog is created. Up to 2003, 3,500 petitions for leave to appeal and 700 appeals were pending at the appellate division[5]. In high court division, 150,000 cases are pending[6] .The situation is even more severe in lower courts. Every day, a judge has to deal with 100 to 150 bail prayers. The result is, in civil courts the number of pending cases are 473,000 whereas in criminal courts the number is even greater- 569,017.

2.1 Outdated Laws:

In the case of criminal court, some of the primary legislations are almost 150 years old. The British heritage still plays an important role and the judiciary still follows some penal statute “…the sole purpose of which is to restrict the movement of the poor”[7] Ignoring the dynamicity of law is placing it in a static position where laws are not keeping pace with the changing pattern of crime.

 2.1.2 Politicization of the Legal Sector

Legal sector has usually been considered as the utmost source of accountability. However, in recent years, the particular phenomenon- politicization has touched this very sector. There is little doubt in the fact that the lower courts are often politicized[8]. “We know a magistrate who sits in court only once a week and the rest of the week, he stays in Dhaka,” commented a lawyer. Lack of accountability is paying its price. Bribery is quite common, even certain documents can be “lost”, if proper amount of money is spent. Also, the High Court and the Appellate Divisions are not beyond its reach. In its “State of Governance Report 2006”, Center for Governance Studies has described the recent incident in which the decision taken by the chief justice regarding writ petitions filed challenging the president’s assumption of the head of caretaker government and resulting violence as “unnecessary entanglement of the judiciary in political controversy”. It seems that the very concept of the Caretaker Government has opened a floodgate for politicization where the ruling parties are playing their part to ensure that the last retired chief justice is someone who can be termed as politically employed[9].

2.1.3 Case Management

In Bangladesh, a judge has to perform both the administrative duties and the normal work of justice. Lack of a systematic delegation of authority in court management makes the judges overburdened. There is no database about the number and status of cases dealt by a court. Though IRIS prepared a central database to monitor the number of pending cases/function of judges in five districts, it has not yet been implemented.

 2.1.4 Low Quality of Judges and Court Staff

For adversarial system to work, efficient and qualified lawyers are an essential precondition. During the British period, there was a provision that to practice law, a person had to be on one year probation in court and in the chamber of a senior lawyer.

To enroll in the high court, a lawyer had to practice five years in lower courts. However, in 1962, President Ayub Khan simplified this provision that after two years of practicing in lower courts, a lawyer could enroll in high court. Besides, we have observed that judges are sometimes appointed on political consideration without considering their educational background and training received. However, “political appointments of public prosecutors are unavoidable, but such appointment will not work if the appointees don’t know the law,” opined a public prosecutor[10]. In addition, renowned lawyers are reluctant in taking up the job of judges, as it would limit their income.

2.1.5 Shortage of Manpower

With the increase of the population of the country, the number of litigations has increased as well. However, the number of courts and judges and other personnel involved in the system has not been increased sufficiently. It is found that almost about10, 000 cases are filed every day. Under the circumstance, it necessitates to enhance the number of court and judges for speedy disposal of the cases filed every day.

 2.1.6 Ineffective Law Enforcement Authority

There are many flaws in the law enforcement mechanism of both criminal and civil justice system. In the criminal cases, police reports are the foundation of criminal justice. The police arrests, frames the case, investigates and submits charge sheet to the court inspector. Police does all the preliminary work of justice, based on which judgment is delivered from the court. As the police are the framer, investigator and reporter of the case, there is huge scope for manipulation.[11] In some cases, charge sheet depends on the amount of the bribe. Sometimes they even manipulate the murder case by tampering evidence. “Justice is affected due to corrupt practices of police. They make weak charge sheets with an attempt to weaken the case they get bribes from the offenders”, a journalist added[12]. Moreover, police personnel are often used by the ruling political party. The ruling party also appoints police personnel from the party cadre. As such, police normally cannot work independently. Corruption in police seriously affects criminal justice Police is not accountable to any immediate authority for their deeds. The Superintendent of Police (SP) is not accountable to the District Commissioner as it was before. In terms of capacity, police has many limitations too. Geographical area of a police station/thana is too big compared to its manpower. “…the average police people ratio is 1:1400. In suburban areas, it is far greater like1:14000 while in Singapore it is1:250”, informed a police office.

2.1.7 Separation of Judiciary: Judiciary suffers from a lack of operational independence as the appointment, posting, promotion to the higher court remains under the control of the executive. Failing to separate the judiciary from the executive forces a judge, while dealing with a case, consciously or unconsciously to think about his appointing authority, which ultimately affect the judgment?

2.1.8 Corruption

After securing the first position as being the most corrupt country of the world, finally this year Bangladesh moved to the third position. The judicial sector, the hope for combating corruption, most ironically “…comes second only to the police as the most corrupt institution in the country.”

2.1.9 Lack of Indigenization

We have so far failed to indigenize the judiciary. Instead, it is still operating on the basis of British laws and systems. For instance, given the huge backlogs of cases mainly due to shortage of  judges, three months vacation in the high court is quite ridiculous.“In fact, during the colonial days, judges coming from European countries needed three months’ yearly holiday to visit home, but in the present scenario these long holidays are quite unnecessary and it only undercuts the performance of justice sector further”, observed a politician. During these three months vacation witnesses may forget the case, evidence may be distorted, judges may die or many other unpredictable things may happen.

The philosophical, psychological, systemic and procedural barriers together create a negative attitude and reservations towards formal courts for the poor. The suspicion and distrust about the formal legal system is colossal. This negative attitude has been translated through the cultural system, and it is now a matter of disgrace to go to court. As a saying goes, only those people go to court who are bad and dangerous. Another says; in shalish you have no other way but truth, and in court you have no other way butto tell lies. Therefore, it is a matter of shame and dishonor, which a few are prepared to embrace. In some extreme cases, the same attitude goes even further and to protect the honor of the village, all the villagers are prohibited or even barred from going to court.

 2.2 DEPENDENCE OF THE POOR ON INFORMAL JUSTICE SYSTEMS

We have observed that the poor face problems in accessing formal justice systems and tend to use informal systems. Apart from serious crimes like murder, rape and acid violence, which are less frequent, majority of the problems that the poor experience consist of family matters, petty disputes, petty theft, sexual abuse etc. Usually a formal court does not consider these cases because of the insignificance of their nature and the enormity of their amount of more serious cases. Often, these petty cases, if filed in a formal court, are redirected to the Village Court (VC). However, a particular characteristic of these apparently insignificant problems is that from being insignificant they can gain significance and may potentially cause probable injury to the people involved. If resolved earlier through village court or informal systems then the bigger problems (severe injury, violence etc.) could have been averted if they were nipped in the bud. The opinion of the rural people is unanimous here- problems should be forestalled at the first sign of it, not after the damage is done. According to them, court only considers problems when they reach the extreme, whereas the extreme stage can be prevented if addressed properly in the primary stages through local level institutions[13]. However, the local level informal justice institutions and processes are not free of problems. The next section describes the constraints that the poor face when they try to access justice through informal institutions.

 2.2.1Problems of Informal Justice Sector

As stated earlier, the informal legal system consists of mainly two institutions traditional shalish and NGO-sponsored mediation and shalish. Whereas in the past, traditional shalish had been considered as the most effective means to resolve disputes, in recent times, the significance, importance and effectiveness of shalish are declining. There are many reasons behind this lowered status of shalish. The problems faced by the informal systems are: Bias: Traditional shalish emphasizes heavily on the existing social structure and this unequal power structure creates an impediment to ensure justice for the poor. People who belong to the upper strata of the society can easily exercise their economic influence in traditional shalish and if their confronting side is poor, justice may be easily denied. Besides, many a times, the shalishkers help the rich or the elites to receive something in return. Political consideration is also reflected in shalish. Political affiliation of the person seeking justice has become an important point of consideration and the just resolution is not delivered as the shalishkers have started to consider them consequence of their resolution on their vote bank[14]. Shalish is also a subject to manipulation by corrupt touts and local musclemen who are hired to intimidate the entire process[15] . Hashmi, in this case presented a model of “member-matbar-mulla’ triumvirate that takes control over the traditional shalish-

“The members of the Union Parishad (the lowest electoral unit) are elected officials, in charge of the disbursement of public goods and relief materials among the poor villagers, are the most powerful in the triumvirate. They are often connected with the ruling political party of other influential power brokers in the neighboring towns or groups of villages. The matbars (matabbars) or village elders, who also sit on the shalish are next in the hierarchy, having vested interests in the village economy as reinters and moneylenders. They often get shares in misappropriated relief goods along with government officials and members-chairmen of the Union Parishad. The mulla, associated with the local mosques and maktabs (elementary religious schools) are sometimes quite influential as they endorse the activities of village elders albeit in the name of Islamic or Sharia law. They often sit on the shalish and issue fatwa in support of their patrons, the village elders[16]  NGOs are trying hard to ensure access to justice for the poor and people generally tend to rely more on NGO-organized mediation. To one villager- “justice can be ensured only through NGOs as biasness is completely absent there. However, in some cases, they failed to stand beside the poor.

2.2.2 Corruption

The wide spread corruption has found its place even in the traditional shalish system. Until the ‘80s, shalish was conducted by the elders or people who were accepted by all. However, the late‘80s witnessed a change in rural power structure and the authority to conduct shalish was transferred to the UP Chairman. Often, the UP elected representatives adopt unfair means and align with the rich and justice is denied to the poor.

In case of combating corruption, NGOs are playing a significant role. In a number of cases, they have succeeded to force the shalishkers to make a just judgment. In a particular case, when the shalishkers took Tk. 10,000 out of 15,000 as compensation for conducting shalish saying that “I have spent the whole night ensuring that you will get justice, now give me my share”, the NGOs stood beside the poor and for their constant pressure; the shalishkers were forced to give back the money.

One of the main reasons behind the success of traditional shalish is its support towards traditional values, customs and power structure. On the other hand, this traditional outlook supports patriarchy and thus prevents women from getting justice. Women cannot enjoy the opportunity to participate or express opinion in a traditional shalish. The women are not considered even as witnesses. For instance, an Asia Foundation report describes a case in which a victim’s husband’s dowry demands led to beating her and casting out of the home. She asked for help from shalish but it was quite fruitless as “…I could not speak up…I didn’t have the chance to say anything”[17]

2.2.3 Lack of Legal Awareness

Still today, most people of rural Bangladesh are unaware of their legal rights. Dowry is a common phenomenon in village and the villagers just do not know that giving or receiving dowry is prohibited by the law. Every now and then, the women come to the NGO legal aid offices to file charge against her husband for battering. In almost all cases, the reason is, failure to pay dowry.

The actual meaning of “Denmohor” (dower) is not yet understood by women and most of them failed to collect it in time. For its patriarchal nature, traditional shalish fails to provide justice in these cases and NGOs cannot provide legal help in case of dowry related incidents until they renamed it as “Bhoronposhon” (maintenance)[18]. Thus, with a case of different nature, legal aid is provided but the problem of dowry does not end.

2.2.4 Social Acceptance of Justice Delivered

The acceptance of the outcome of shalish is declining as we observe a declining trend in terms of social values which is ultimately loosening the social fabric. The social norms, customs and context that helped to endure shalish as an effective dispute resolution mechanism for long, has started to fall apart. In the past, one of the main reasons behind the effectiveness of shalish was the social importance the elders/shalishkers carried and the overwhelming acceptability of them.

However, this norm is becoming non-functional day by day. Time has changed and many citizens now belong to a new generation. Unlike their predecessors, they do not show the same respect or obedience towards elderly and the social acceptance of shalish is thus declining.

 2.2.5 Influence of Money and Power

In this era of capitalism, money has become the most important instrument to consider when it comes to justice. Those who have this particular instrument consider themselves above any shalish. Moreover, money brings power and moneyed citizens conduct shalish in many instances. In most cases these shalishes are biased.

 2.2.6 Declining Status and authority of Shalish

There was a time when the word ‘shalish’ was almost synonymous to “law” and everyone was bound to follow it. But, at present, the formal law of the country has made a distinction between “shalishable” and “non shalishable” crimes and disputes. As a result, unlike the past, people are reluctant to seek the help of shalish. ‘Boycott’ was an effective instrument of shalish but now the strictest penalty that a shalish can offer is a fine of certain amount of money. So, at present the traditional shalish has to deal with petty cases. In major cases like murder or rape, people have to go to the formal legal systems. With the present status of the legal system, they fail to get proper justice there.

2.2.7 Changing Social Norms

The social norms that regulated shalish as a dispute resolution mechanism have been changed. In the past, shalishkers were selected according to their reputation, age, personality, status and lineage. Now political leaders and influential persons conduct shalish where their age, personality or character is less important than their money and political influence. Besides, the practice of taking money did not exist in past. Those who conducted shalish did not do it for themselves; rather they did it for people. Now shalish is conducted by political leaders for whom earning money is more important than serving people. Moreover, when political leaders are taking control of the shalish before giving their verdict they tend to consider the effect of this particular decision on his vote banks. In a number of cases, these political leaders took decisions only to make sure that they can get vote of a particular group of people.[19] Finally, the spread of education is creating an impact on the quality of shalishkers. In the past, when the number of educated people was quite limited, their judgment was accepted by all.

However, in recent days, the light of education has put everyone in the same height and no one is likely to consider another one as a well-educated person who can be trusted in case of shalish. The common comment is, “you think he is learned, so what are we Mofij(Fool). Also in a number of cases, the UP Chairman and members fail to provide justice and creates impediment in case of going to the NGO to seek legal aid. They motivate poor and say , “Why we should go to BRAC with our home affair?”

However, the last two problems mentioned above about declining status of traditional shalish and changing social norms are to us the key to legal empowerment and access to justice for the poor. In the past, shalish was the only institution and people did not have any alternatives to choose from. But, at present, formal law and legal system, which in the previous era was somewhat alien to the rural people, is not beyond their reach now.

Even the rural Bangladesh is not keeping itself away from the flow of information. The formal laws, which were unknown to most of the villagers in the past, are now known to most of them. Besides, a number of organizations are working in the villages to provide legal aid to the people. Access to media has also been a positive phenomenon for the poor. As a result, shalish is losing its importance. But, this low status of traditional shalish does not necessarily legally empower the poor as formal systems have numerous problems. Despite, problems with shalish, a large number of rural people still consider shalish as the most effective way of getting justice. According to rural people, justice can only be delivered by people who live in that particular village. “How can someone who does not know us deliver justice? A judge should be some one whom both the confronting parties know. As he lives with us, he can realize what actually happened”. This idea goes directly against the idea of justice present in the formal legal system, where to ensure objectivity and fair trial the judge should be an anonymous person to both the parties. But according to rural people it is impossible to give a fair verdict by an anonymous person based only on the narratives of the incident and without knowing the personalities of the parties involved, and who is telling lies and who is not.

When asked about the biasness of the adjudicator of he/she knows the parties, the rural poor suggest that there is a very little possibility of being biased in a village shalish because the status of the shalishkers (mediators/adjudicators) in the present context is unlike the past. Now, their status as good shaliskers has to be achieved not to be ascribed as happened in the past. Being biased will not help them in the long run to maintain it. Therefore, not only do they have to gain the faith of the villagers but also have to maintain their objectivity throughout their lives because villagers have the liberty to choose shalishkers. Therefore, villagers feel that they have more control here in comparison with the formal court where they have to obey the orders of a judge whom they did not have the right to choose. But, as mentioned above, the existing literature and our field-level research do not exactly depict this all-so-good picture of the shalish.

Another reason responsible for people not being at ease with the formal legal system is the lack of control they have on the procedures and processes of the court. In Bangladesh, the legal system is adversarial, i.e., it requires victims to prove the offence with all evidence instead of offenders. A victim has to present the witnesses in front of court, which is arduous and expensive[20]. On the other hand, in a shalish, a complainant has no such pressure. One of the main issues that create an impediment in case of engagement of the people with the formal legal system is the amount of time needed to deliver justice. People believe that the first and foremost concern of trial should be to finish it immediately. To them that is the key sign of justice[21]. Another area of the processes of court that shove people’s mind away from it is in court they do not have the opportunity to speak for themselves rather lawyers will represent them in court. But rural people consider speaking as the most important means to settle a dispute, because through speaking up their minds, their anger will be subdued. However, according to them the procedures in court block this vent.

Witness plays an important part in the formal legal system. In formal legal systems, a witness is under the oath to speak the truth and perjured him or herself when truth is not spoken. But the very idea of taking an oath is quite meaningless to the rural people as they do not consider it as effective. To them, the setting or arrangements in a traditional shalish is far more efficient because they think that it is not possible for one to lie in front of all villagers. Moreover, in most of the cases those who are present in shalish are themselves eyewitnesses of the disputed incident. These types of differences coupled with the problems of language, settings and norms led people to drift further away from the formal legal systems.

Moreover, when a verdict is delivered in a formal court, there is no scope to take the opinions of the parties about the solution to be given. But in the local system, parties are generally asked about the best possible solution according to their views. The very idea of “justice” is similar with “mutual understanding’ to most rural people. One male mediator puts it this way- “justice means to deliver a resolution after taking consent of both the confronting parties”[22] .To them, it should be a participatory process where everyone involved will reach into a consensus.

In the eye of the law or to be specific, the formal legal system, all citizens are equal. But living in a stratified society, where social status plays an important role, this concept of ‘equality’ is unacceptable to the rural people. Therefore, whereas in a formal court the degree of punishment will depend on only the crime itself, in shalish the resolution will be different for different people based on their social background or status. For instance- “if a problem arises between a father and a son and if it turns out that the fault lies with the father, still, the shalish will rebuke the son for his misconduct. Behind the scene, the father will be told, ‘look, its your fault don’t let it happen again.’ Thus, both parties will go home happily”.

These particular issues are beyond the understanding of the formal court. Undoubtedly, for its elitist outlook and negligence to the norms or values deeply rooted in rural areas, in distant future, even if it is possible to eradicate other barriers such as the economic or political ones, these psychological barriers will remain as significant obstacles, keeping the access to justice through formal system as an elusive dream. All in all, these common problems regarding formal justice sector, getting mixed with the inertia or apathy on the part of the rural poor have started to withdraw them towards the informal system, where too, they have to face a lot of problems but at least the meaning of justice at informal system does not contradict their idea.

The NGOs have come forward to solve the problems that a traditional shalish faces. The role of NGOs in this case is quite praiseworthy. They have effectively campaigned for women’s empowerment. However, their success is limited but they are achieving success in a slow but steady pace. So far, their success is two folds. First of all, through providing financial aid, they are giving the women a voice and in NGO-sponsored shalish, they are allowing participation of women (Ongoing Research, BRAC). However, what they lack is the acceptability of their action. In a particular case, after getting legal aid from BRAC, a woman was named “BRACer Beti” (BRAC’s daughter). In some cases, getting legal aid from NGOs is considered rather insulting. The next section specifically pinpoints the problems of formal justice systems as well as the informal shalish based on five stages provided by Anderson. It then recommends an integrated approach to access to justice for the poor.

2.3 CONSEQUENCES OF THE BARRIERS IN JUSTICE AND SOCIAL

SYSTEMS AND ACCESS TO JUSTICE:

As defined earlier, access to justice includes certain stages, which starts with the right to bring the grievances before the court and end up with enforcement of the remedy achieved. Anderson (2003) suggests five stages of access to justice and they are- naming, blaming, claiming, winning and enforcing.

 1: Stages of access to justice [23]

Naming Identifying a grievance as a legal problem

Blaming Identifying a culprit

Claiming Staking a formal legal claim

Winning Getting rights and legitimate interests recognized

Enforcing Translating rights into reality

The barriers of the formal legal system that have been identified before play its part to make sure that access to justice is denied at every stage. As shown in stage 1 demands the identification of a grievance and the filing of it as a legal problem. Two things create problem in Bangladesh in doing so. First, certain grievances of rural poor are not even recognized by the court. For instance, laws related to marital rape, domestic violence are non-existent. The Children and Women Repression (Prevention) Act is also faulty. In most cases, instead of favoring women, it is abused by the husband’s families. Second, technicality of law is another problem. Language of law is not understandable and thus access to justice is denied.

Even when the problems related to the first stage is overcome; it only paves the way to the problems related to the second stage. It demands the identification of the criminal. The ineffectiveness of law enforcement bodies and unbridled corruption create hindrance in this stage and thus to access to justice.

If fortunately, someone becomes successful to overcome this hurdle, he has to deal with staking a legal claim. However, the anti-poor laws in the formal legal systems, negative attitude to the poor among many engaged in legal process and excessive bureaucracy create unwanted delay in processing a legal claim[24]. Conquering those particular problems does not always present a success story. In case of the next step, which demands the recognition of legitimate interest, problems like delayed and derailed justice procedure, failure of the poor in countering the fake witnesses often does not bring the desired outcome.

The luckiest of the poor can reach up to final stage, which requires translating his/her right into a reality. However, barriers like corruption, lack of judicial independence and ‘abuse of political authority vis-à-vis law enforcing agencies’ can undermine the surety of implementation of justice delivered[25].

Thus, following Anderson’s stages, the access to justice for the poor is denied in Bangladesh as mentioned below:

 2: Access to Justice through Formal Legal System: Bangladesh Scenario Stages Problems faced in Bangladesh Identifying a grievance as a legal problem Inadequate laws, too much technicality

Identifying a culprit Ineffective law enforcement bodies, corruption Staking a formal legal claim Ant-poor laws, negative attitude, excessive bureaucracy Getting rights and legitimate interests recognized Delayed justice procedure, corruption

Translating rights into reality Corruption, abuse of political power For rural poor, the formal legal systems, from 100-meter sprint, turns into a 100 meter hurdles. The poor are not expected to finish the race without injuring themselves. This injury or fear of injury denies access to justice and forces them to move to the informal legal system. Until pretty recently and in some cases, still today, to the rural poor, in informal legal system, the most important dispute resolution center is the Traditional Shalish (TS).

However, the aforementioned barriers concerning informal legal system are basically due to change in mode of production. The control over TS has changed hand and so has its acceptability. In the past, a council of elders played the role of moral arbiters and settled dispute through shalish[26]. As land was the only source of production, until some thirty years ago, the landowners were the most powerful and influential people and they constituted this council of elders. Societal relationships were patron-client based, in which, enjoying the higher socio-economic status; the landowners provided general support and assistance to people of lower socio-economic status[27]. They were few in number and enjoyed landslide respect and command. The class structure was simpler and land based, consisting of only four- rich peasants, middle peasants, small peasants and landless[28].

However, the post-80’s villages of Bangladesh had to gone through changes. The upgrading of Thana resulted in an “…emergent service sector, including trade and transportation”[29]. By the 90s, due to capitalist investment, land has become more insignificant as a means of production. The number and nature of both the patrons and the clients have changed. The new power lords, now in one way or another, are involved in either local legislation or trade[30] . Now, the rural power holders are:

 “1. Matbars (village headmen) controlling the informal institutions like Samaj (society), Salish and owning most of the land.

2. Union Parishad leaders controlling formal administrative institutions at local level.

3. Rural political elites representing different political parties at the grassroots level.

4. Government employees at the rural levels.

5. Economic elites controlling economic organizations like cooperatives, deep tube well management committees, shallow tube-wells, ration shops, fertilizer shops, etc.” [31]

As a result, vested interests of both patron and client have changed. The “post” of shalishkers now can be achieved through money, political affiliation or involvement with the government. This trend has increased the factionalism between the villagers and decreased the acceptability of the patrons. Westergaard and Hussain in an analysis of rural power structure pointed out that in a particular village, whereas pre independence period saw only one “Samaj” and one acceptable leader, the number of “Samaj” and leaders have increased to ten in the 90s[32].

This is affecting the access to justice through TS in two ways. First, as the number of influential person is increasing, the universal acceptability that they enjoyed previously is declining. Second, each influential person or a patron now has certain groups to please and certain interests to preserve- be it political or economic. The stages of access to justice can look like this:

 3: Access to Justice through TS: Bangladesh Scenario Stages Problems faced in Bangladesh

Identifying a grievance

 None Identifying a culprit None

Staking a formal claim None

Getting rights and legitimate

interests recognized

Biasness, corruption, declining

acceptability of the patrons

Translating rights into reality Acceptability of decision taken

JUSTICE DELAYED & JUSTICE DENIED

‘Justice delayed is justice denied’ is a very common adage in the judicial domain. It is one of the most burning problems in the administration of justice. This system of justice is so ambiguous and miserable for the mass people that it cannot be explained in a word. There are many instances that poor people who went to court to address their grievances after selling off their lands and property to meet the expenses of the court, but did not get justice in their lifetime. At present, the only demand of mass people is the speedy approach to justice. Certainly ‘speedy approach to justice’ is gradually getting the status of an important human right which is also denied by some administrators in justice and the underprivileged people continue to be dominated by them. This day, the judiciary organ is an independent organ in our country from the executive. So, it is high time to adopt effective steps to dispense our justice as early as possible.

How much pain the delay process of justice involves need not be explained. This picture of justice is very much dreadful for our poor citizens. It is generally seen that a case is still hanging in court, which began more than one decade ago. There are many victims who don’t easily think of going to court seeking justice because they know it will take years to prove a clearly visible wrongdoer is the actual criminal. Moreover, the impact of this unusual delay in disposal of cases falls on the victims. Due to delay in litigation, people become annoyed to obtain proper justice at any stage and also develop a negative outlook in their mind about the total judiciary schemes including judges, lawyers, associates and the administration of justice etc.

The process of delay in litigation is equally known to all and nevertheless it may sound inconsistent with due process of law. The fact remains that the very cases are misused and abused in order to delay cases for an indefinite period and ultimate success in the cause often proves false. Now, law is an effective weapon in the hands of the state to mitigate the social needs by ensuring proper justice in time. Such effort of law is liable if justice fails to mitigate the misery of the mass people due to delay in litigation only and the faith in justice can never be instilled in the mass people if the state doesn’t ensure the speedy process of justice.

In the field of justice, delay in litigation is traditionally practiced in our country as like at the same time as denying due process of law. The result is that cases are piled up in all the courts hugely day by day. Basically, the delay in litigation is incredibly practiced in civil courts. Our civil courts are governed by the Civil Procedure Code 1908 which was enacted during the British reign. But, after the independence, the government of Bangladesh had taken an attempt to accelerate the civil procedure system. The problem of delay in litigation including arrears of cases has been engaging the attention of the Law Commission for a long time and as a result of its recommendations made from time to time, reasonably wide changes have been made in the provisions of the Code in 1983 by making an Ordinance with a view to removing the causes of delay. Before such amendment Ordinance, there was no limitation to submit the court-fees and other relevant documents. But, by this Ordinance, the parties to a suit have to submit the proper court-fees with all relevant documents within 21 days after issue of summons and the plaintiffs have to submit all documents at the time of institution of the suit to focus on the cause of action. On the other hand, there was no specific time for examination of the defendants/witnesses and in framing of issues before such amendment. But, after promulgation of the Ordinance, no time is be allowed for examination of the defendants/witnesses after 2(two) months and the court is bound to frame the issues within 15 days after examination of the defendants/witness. However, by the blessing of this Ordinance, the court is also bound to give the judgment of a case within 127 days from the framing of issues. While 120 days is fixed for hearing and after hearing, rest 7 days is fixed for giving the judgment. But, these changes seem to have had little impact.

Actually, delay in litigation is still prevailing in the field of civil justice. On the other hand in criminal area, it is usually seen that a person, from the date of arrest, is in custody without any trial for many days though it is not proved whether he is an offender or not. Crime increases only when the justice is delayed or do not take place. So, it is obviously a vital issue to change the present scheme of our legal procedure. A number of causes seem to be responsible for creating this crippling situation in the way of our justice. An attempt has been made here to pinpoint some of the causes and suggest measures to remove them. It appears that the main causes of delay-  Lack of good lawyers. The attitude of some of the lawyers is also to some extent responsible for  delay. Accumulation of cases.  Insufficient number of judges.  Lack of proper observation of the provisions of the Codes.  A large number of cases that come before the Supreme Court cannot be concluded hastily due to interpretation of legislative enactment in question. Delay in proper investigation or inquiry in a litigation. Variety of laws on a particular issue. Inadequate office equipment and machinery. Unreasonable absence of witnesses. Cumbersome execution procedure of decrees in civil cases. Lack of utilization of modern technology in keeping records and documents.

Actually, delay in litigation is practiced in our judicial domain for many days. So, it can’t be removed in a day. But, it is as much crucial an issue that our Government has to take immediate steps to diminish this problem. However, from my view, following steps can be adopted to change the current character of administration of justice:  The atmosphere of justice must be corruption free.  Adequate number of judges should be ensured.  Justice administration system should be easy and not much expensive. Although the Constitution guaranteed equal right.

WAYS TO AVOID DELAY

ADR IN  BANGLADESH

Alternative Dispute Resolution, mostly applied to civil cases. When a civil case is instituted in a court of competent jurisdiction, the scenario usually is, that a long time is taken to serve the process, the defendants beat the law and submit their written statement/s after a long delay beyond the permissible statutory period of two months, lawyers and judges do not take any interest in screening out a false and frivolous case at the first hearing of the case under Order X CPC (in fact no such first hearing takes place), they seldom try to shorten the disputed questions of fact and law by application of Orders XI and XII of the CPC and mostly ignore the elaborate procedure of discovery, interrogatories, notice to produce etc. contained in those Orders, the issues of a case are seldom framed following the Code of Civil Procedure, the case takes several years to reach a settlement date and on the date of positive hearing half a dozen or more ready cases are fixed for hearing, resulting in the hearing of none. In the meantime years roll by, presiding judge of a single case is transferred a number of times, witnesses of a single case may be heard by more than one presiding judge, arguments are listened to may be by another presiding judge and judgment may be delivered by a presiding judge who had had no connection with the case ever before. Our legal system has thus been rendered uncaring, non-accountable and formalistic. It delivers formal justice and it is oblivious of the sufferings and woos of litigants, of their waste of money, time and energy and of their engagement in unproductive activities, sometimes for decades. When they win a case the result is much worse than winning it. When they lose a case they lose not only the subject matter of the dispute, but also a good part of their fortune. If interlocutory matters are dragged up to the appellate or revisional courts, their woos know no bounds and their agonies are prolonged for an indefinite period. Appeals from trial court decrees may reach unto the Appellate Division by which time the parties are thoroughly drenched in misery. When a decree is thus obtained after protracted litigation, it does not end there. Execution proceedings then re-starts a fresh litigation between the parties or even their successors which may take years or decades to come to a conclusion and which may end up with no real or positive benefit to the decree-holder plaintiff. This is the experience of a common litigant in Bangladesh. Added to this inherent and in-built delay and expenses, justice delivery system.   corruption and often terrorism at almost each stage of litigation is eating into the vitals of the justice delivery system.

Most of us who are or were in the judiciary and were or are practicing in the Bar think that nothing can be done about it, or, at least, we have no role to play in the matter, either individually or collectively. We are drifting into a stage of aimlessness, inertia, inaction and helplessness. Many conscientious judges and lawyers have done what they could under the circumstances, but their sincerity has been drowned into the general morass of malfunctioning of the court system.

5.1 Experience of Developed Countries

All countries, following the common law system, have faced this problem of delay and excessive expenses in the disposal of civil cases at some point or the other in their respective legal history, as also the problem of apathy of judges and lawyers. Developed countries like the U.S.A., Australia and Canada have witnessed a few decades back huge backlog of cases, excessive legal costs and expenses and litigants’ misery, as we are witnessing now in our country.

Lawyers and judges of developed countries did not look upon the Government to solve what was essentially a problem of administration of justice that concerned lawyers and judges themselves. In many areas of these countries, some thirty plus years back, public-spirited judges and lawyers put their heads together and devised a common strategy to solve the problem of huge backlog of cases, delay in the disposal of cases and excessive expenses in litigation.

5.2 Their Perception of Adversarial System

What they found was that the adversarial system prevalent in common law countries were no longer adequate to address the growingly complicated technical legal problems of modem-day litigation. The adversarial system creates two mutually contending, exclusive, hostile, competitive, confrontational and uncompromising parties to litigation. This system does not generate a climate of consensus, compromise and co-operation. As litigation progresses it generates conflict after conflict. At the end of litigation one party emerges as the victor and the other party is put to the position of the vanquished. Adversarial litigation does not end in a harmony. It creates more bitterness between the parties that manifests itself in more litigation between them or even their successors. However, judges and lawyers of developed countries found that the alternative is not to do away altogether with the adversarial system. The adversarial system plays a positive role too. It settles through adversarial hearing complicated and disputed questions of fact and law. The law that superior courts lay down to be followed by subordinate courts and tribunals can never be arrived at without following the adversarial procedure. Any court cannot lay down any law by way of compromise, consent or consensus of parties to litigation.

5.3 Their Adoption of Consensual System As an Alternative not Substitute

Beyond the territory of complicated questions of fact and law there lies a vast area of litigation where the adversarial system must yield to a consensual type of dispute resolution, even though there are complicated technical legal problems in this vast area as well. The consensual type is essentially a type and a process of dispute resolution that requires judges, lawyers and the litigant public to change their century’s old mind-set and to adjust gradually to play a combined and co-operative role in the resolution of disputes. In an adversarial system a judge has a passive role to play. He/she will take the evidence as it comes, hear the parties and deliver his/her judgment without getting involved in the entire dispute resolution process. In a consensual system the judge, the lawyers, litigants and outside mediator or evaluator are all active parties to the resolution of dispute. It is informal, confidential, speedy and less expensive. It preserves the jurisdiction of the trial court to try the case on merit, if A.D.R. fails.

5.4 Their Solution, But What is New About It

These and other jurisprudential thinking led the judicial and legal thinkers of U.S.A., Australia and Canada to devise two prominent alternative methods of dispute resolution: (1) mediation and (2) non-binding arbitration.

Question may arise, is it anything new? Certainly, it is not entirely new, at least to us. In this sub-continent of ours, mediation by village elders and arbitration by impartial individuals or group of individuals have continued since time immemorial. A recent UNDP report on Bangladesh gives a finding that village elders settle 60 to 70 per cent of petty disputes between villagers who dare not approach the formal legal system for fear of delay and expenses.

Then, what is new about the concept of alternative dispute resolution? Shortly stated, the newness of A.D.R. is the purpose behind its adoption. The purpose of alternative dispute resolution is not to substitute consensual disposal for adversarial disposal or to abolish or discourage informal mediation or arbitration outside the courts, but to make alternative dispute resolution a part and parcel of the formal legal system, preserving the trial court’s statutory authority and jurisdiction to try the case should A.D.R. fail. Mediation or arbitration conducted by village elders and some NGOs are praiseworthy efforts, but these efforts, by themselves, have not solved the civil court’s own specific problems, namely, backlog of cases, delay and expenses in litigation. Our formal court system has not been directly and permanently benefited by these extra-judicial exercises. If out of court mediation continues and an exclusively adversarial system also continues in our legal and judicial system, then the formal court system will unlikely help reduce backlog, as also unlikely ever to be as speedy and as least expensive as we would like it to be. It will be prudent, therefore, to inject some doses of consensual resolution into an otherwise exclusively adversarial system. If we make alternative dispute resolution an integral part of our legal and judicial system, litigants and potential litigants will not feel insecure to live in a legal climate where justice can be had from the formal legal system only through a process of inordinate delays and overburdening expenses. They will live in a climate of assurance that an alternative method of obtaining justice can be obtained from the formal legal and judicial system itself speedily and with less expense. This, they believe, is a legitimate expectation of the people of Bangladesh from any Court “established by law” under Article 114 of the Constitution. What is available to the benefit of a litigant from a paralegal informal system should legitimately be expected from a court “established by law”. This is the justification of alternative dispute resolution.

5.5 Different Forms of A.D.R. and their Application

5.5.1 Mediation

The most common type of A.D.R. is mediation. Although the word “conciliation” is also used in A.D.R. terminology, there is virtually no distinction between mediation and conciliation, because mediation includes conciliation. It is generally recognized that when parties come to a stage of litigation when the trial is imminent, alternative dispute resolution is[33] too late a procedure to induce the parties to divert themselves to a different procedure, because by that time the parties had already spent a substantial amount of money, time and energy in the litigation. It is then too late to take an interest in a cost­saving or timesaving procedure. Attitudes had also hardened mutually on both sides. It is desirable that after the defendant/s file their written statements, the presiding judge should read both the plaint and the written statements and call the parties and their lawyers, if any, to impress upon them the desirability of settling their disputes through mediation or non-binding arbitration. If the parties agree the case is adjourned for three months, within which they have to obtain either a settlement or a failure of it from either the mediator or the arbitrator. In the event of failure to settle, the court will proceed to try the case, according to a time-calendar for each case, and the adversarial system will resume.

5.5.2 Court-Directed Mediation Proceedings

Mediation is a completely voluntary and non-binding process of settlement of disputes between parties. It is an informal, flexible, confidential, non-adversarial and consensual procedure in which the Code of Civil Procedure or any law of evidence does not apply. The proceedings are immune from disclosure in any court of law. An impartial, disinterested and neutral person acts as a mediator. Mediation may be 1) Direct or 2) Facilitative. In Direct Mediation, the mediator applies all methods of squeezing into the heads of the parties his/her own idea of a settlement. In Facilitative Mediation the mediator facilitates settlement negotiations, improves communication between the parties, helps the parties to articulate their respective interests and stakes in the litigation and helps each party to understand the interests and stakes of their opponent in the litigation. He/she probes the relative strengths and weaknesses of each party’s legal position, identifies areas of agreement and helps to generate options amongst the parties themselves to arrive at a mutually acceptable resolution of their disputes. The lawyers of each party are entitled as of right to take part in the mediation proceedings, but the mediator in an informal and flexible proceeding of this kind, may like to sit alternately with the plaintiff/s or the defendant/s, with or without their lawyers. The parties may disclose many things to the mediator not articulated in the plaint or written statement/s, but the mediator must maintain the confidentiality of these disclosures and tell the other side so much of the disclosures as he/she has been expressly authorized to disclose. He/she must not lean on any side and both sides must have confidence and trust in his/her impartiality and neutrality unto the end, even if there is no settlement. If the decision­ makers of a dispute in respect of payment of legal fees to the parties or in respect of execution of the court’s decree are operating from behind using the plaintiff/s or the defendant/s as proxies, the mediator has the right to call and listen them too. At a trial the judge’s hands are more restrained. It may so happen that the mediator generates so much of a spirit of compromise between the parties that they even agree to withdraw other civil suits pending against each other in other civil courts or compromise compoundable criminal cases pending against each other in various criminal courts. The final settlement is thus not limited to the prayers in the plaint. In a formal trial, a judge cannot go beyond the prayers in the plaint if the suit is decreed. In court-sponsored mediation the terms of settlement may travel beyond the scope of pleadings. When signed by the parties, their lawyers and the mediator,. the presiding judge will pass a decree in terms of the settlement. If other civil and criminal cases are also compromised in the document of settlement, the parties will have to approach the other courts to pass a compromise decree or compound a compoundable criminal offence. If one party fails to do so, the other party may sue for specific performance of contract or may claim damages for breach of contract, because the written settlement operates as a binding contract between the parties. There is no appeal or revision against a settlement of this nature. Hence if all parties adhere to the terms of settlement several cases are finally disposed of and go out of the pending list. When a court directs mediation, it means facilitative mediation.

5.5.3 Benefits of Mediation

Please pause and ponder over the beneficial effects of _ successful mediation. There is no victor and no vanquished. No party is aggrieved by the outcome, because the settlement is voluntary and is reached after considering the pros and cons of several options generated by the mediator. Both sides are in a win-win situation. There is no bitterness left. There is often a restructuring of relationship. Parties who would not see each other’s face may re-establish a working relationship between them after conclusion of a successful mediation. Instead of discord, disharmony and bitter relationship at the end of an adversarial proceeding there is peace, accord and re-established relationship between the parties at the end of a consensual proceedings.

5.5.4 Mediators In Developed Countries

Judges do not conduct mediation or non-binding arbitration. They are meant for trial of a case. But they have the authority to refer any case, or part of a case for any of the A.D.R. mechanisms, preserving their jurisdiction to try the case if A.D.R. fails. When they do so refer, there is no appeal or revision against the order, because that kind of order is passed only when the parties agree with the judge that it should be so done. A.D.R. begins with an agreement, not with a discord. However, the legal climate that prevails in our country is surcharged with a highly adversarial bent of mind that has been fostered throughout centuries. It would be wise to leave the matter whether a case or part of a case should be referred to mediation or arbitration to the discretion of the trial judge, without leaving the matter entirely to the willing consent of both parties. The discretion will not be amenable to appeal or revision. When A.D.R. gains ground, as experience suggests, the consent of both parties would be forthcoming like an avalanche. The judge will hardly have any discretion in the matter.

We have said earlier that it is the combined efforts of lawyers and judges in developed countries for over three or four decades that A.D.R. has come to be accepted as a widely used handmaid of justice. It is the lawyers who convinced the litigant public that if all cases were to be disposed of by trial and trial only, then in all jurisdictions all over the world, backlogs would heap upon backlogs, choking the entire justice delivery system. Because of the pioneering role and involvement of lawyers from the very beginning, it is the lawyers who perform almost 90% of court-directed mediation, non-binding arbitration and early neutral evaluation (of which I shall speak later). Each court maintains a list of senior lawyers who earned their financial security, reputation and standing in the society by practicing in the Bar. They owe it to the Bar and the Bench to repay a part of their debt by giving a bit of their precious time, energy and intellect in the A.D.R. mechanism voluntarily and without payment of any charges or fees. Because a system of rotation is in place, each senior lawyer is required to mediate, arbitrate or make an early neutral evaluation once every three months or six months. A small office is set up at each Bar to maintain and update the list of senior lawyers as approved by the local court, to ascertain if in any court-sponsored mediation, non-binding arbitration or early neutral evaluation any senior lawyer has either been consulted or engaged by either the plaintiff/s or the defendant/s, to request and obtain their consent for their services if they have not been so consulted or engaged and to fix up the date, time and venue of arbitration, non-binding arbitration or early neutral evaluation. A small fee is charged from the plaintiff/s and the defendant/s equally (U.S.$75 each in San Francisco courts) to defray the costs of running this small office. Court-appointed professional mediators perform nearly 5% of this work for a fixed salary paid from the court’s budget. Private Mediation Firms, staffed by well-qualified ex-judges and ex-lawyers, approved by the local court, perform the rest for moderately high fees from both sides. Affluent parties with high stakes flock to the private firms.

5.5.5 Suggested Mediation in Bangladesh

Given the position that in Bangladesh no awareness or movement of senior lawyers of any significance has grown up yet, willing to take up the major load of A.D.R. upon them, it will not be wise, in my view, to start the program with sole dependence upon public-spirited lawyers. It will be prudent, at least at this stage, to keep in the statute a wide option of mediators and arbitrators to avoid the vagary of availability or non-­availability of senior lawyers. Presiding judges of the disputes in question and other available judges of co-equal jurisdiction not in seisin of the disputes in question should be kept as options for the choice of mediator or arbitrator. Senior lawyers as per list maintained and constantly updated by the District Judge should be available for mediation and arbitration free of cost and charges. Private mediation firms, having experienced judges or retired judges and/or qualified non-practicing lawyers on their staff, recommended by the District Judge and approved by the Chief Justice of Bangladesh, may also be included for mediation or non-binding arbitration on payment of equal fees by the parties. Gradually, as the idea spreads and the A.D.R. procedure gains ground, judges may be eliminated from the list altogether. This may take some time, but nothing can be achieved without patience and perseverance. U.S.A., Australia and Canada have not achieved their present position without sustained efforts for three or four decades. 85 to 90 percent of cases filed are now disposed of by A.D.R. method and only 10 to 15 percent cases filed are disposed of by trial now in those countries. But Rome was not built in a day.

5.5.6 Training of Mediators and Arbitrators – A Matter of Continuous Importance

Mediation or arbitration does not come easily to anyone, whatever height he/she attains in legal knowledge and experience. Mediation especially involves the use of a facilitator trained in conflict resolution. The mediator must know the techniques of encouraging the parties to discuss their positions with greater candor and he/she must also know how to foster compromise. Mediation involves a thorough training for a few days. Training literature is available in the Internet and a few trainers in Bangladesh are available as well. The first implementation task will be to train up a large number of trainers in mediation, arbitration and early neutral evaluation. These trainers will then spread out throughout the nook and corner of the country to train up judges, lawyers and other interested persons in the art and science of mediation, arbitration and early neutral evaluation. Without such intensive training, it will be a folly to introduce A.D.R. wholesale in our lower courts. India tried to introduce A.D.R. in 1999 by an amendment to the Code of Civil Procedure, known as the Code of Civil Procedure (Amendment) Act, 1999[34] It ended in a fiasco. There was widespread resistance to it by lawyers that forced the Government of India to postpone its implementation. The lesson is that when you introduce any matter of legal reform or innovation, do not try to impose it from above. Do some intensive work at the grassroots level, build up a large following, try the reform on a trial and error basis by setting up pilot courts and then proceed with caution by examining its results. Learn from the pilot courts and the lawyers involved in mediation and other methods what practical problems they are encountering with, adjust and re-adjust your program accordingly, so that what finally emerges is not a foreign model, but an indigenous Bangladeshi model, suited to the legal culture, ethos and traditions of this country. The second implementation task will be to continue the training for all time to come for the new entrants to the Judicial Service through the Judicial Administration Training Institute (JATI). JATI will have to develop a curriculum especially for A.D.R. and also will have to keep and maintain one or more regular instructor on its pay roll to teach the mechanisms of A.D.R. to the trainee-judges. Outsiders interested to pursue a career of mediation and arbitration may also receive instructions and certificate from JATI, on payment of fees and charges, as and when JATI is ready enough to render this service.

5.6 Non-Binding Arbitration

In the A.D.R. vocabulary, arbitration is preceded by the word ‘non-binding’ because of two reasons. First, it is necessary to emphasize that it is not arbitration under the respective Arbitration Act of any country. Arbitration Act, 2001 of Bangladesh contains so much of a lengthy procedure and it is so much amenable to interference at various stages by the local court having jurisdiction over it and by both Divisions of the Supreme Court that the total purpose of A.D.R. will be frustrated if the Arbitration Act is made applicable to A.D.R. arbitration. The second reason is that in A.D.R. proceedings the jurisdiction of the trial court to try the case, if A.D.R. fails, is always preserved. A.D.R. is not a substituted method of dispute resolution following a separate statutory procedure, but an alternative, informal and confidential procedure to cut down delay and expenses. An arbitrator’s award under A.D.R. procedure is non-binding on both parties. The application of Arbitration Act will take away the trial court’s basic jurisdiction to try the case. This will then be a case of abandonment of judicial function in favor of an Arbitrator.

Non-binding arbitration is an adjudicative process in which an arbitrator or a panel of arbitrators issues a non-binding award on the merits of the disputes in question after an expeditious, time-bound and adversarial hearing. Lawyers of each party will face each other in these proceedings as in any other adversarial proceeding. The arbitrator has no role as a mediator. He/she has a passive role to play. He/she will hear the evidence and peruse the oral and documentary evidence, hear arguments of both sides and give his/her award according to his/her best judgment. Each party has the option to reject the award. If both parties accept the award both of them will sign the award or put their thumb impressions on it, as the case may be, and their respective lawyers, if any, and the arbitrator/s will also sign the award before the trial court makes it a decree of the court. Parties have been given the option to reject the award because if the award has not been satisfactory to either or both of them, they have the right to fall back upon the trial court for a decision on merit. Like mediation this is also a confidential proceeding that is immune from disclosure in any court of law. Arbitrators are nominated in the same manner as mediators.

5.7 Early Neutral Evaluation(ENE)

In the words of Robert A Goodin, “Early neutral evaluation is a technique used in American litigation to provide early focus to complex commercial litigation, and based on that focus, to provide a basis for sensible case management or offer resolution of the entire case, in the very early stages.”

A senior lawyer with expertise and experience in the subject matter of litigation and in case management conducts ENE, when called upon to do so by a trial court. He/she is called the evaluator or neutral Prior to a session lawyers of both sides provide to the evaluator a written brief summarizing the facts, the legal arguments and authorities in support of each party’s case as well as the documents considered by each side necessary for the evaluator’s understanding of each party’s case. The first session is attended by the evaluator, the lawyers of each party, and the principal decision-makers of each party. Suppose a case is instituted for or against a Bank or Insurance Company. Some officers of the Bank or Insurance Company may have been impleaded as defendants but the decision-making lies with the Managing Director or the Board of Directors. In that case the Managing Director or the Board of Directors will be asked by the Evaluator to be present at the first meeting. To achieve maximum effectiveness, it is essential that the actual decision-makers on behalf of each party, i.e., the people who will be ultimately responsible for the payment of legal fees and who have final authority for settlement, be present at the session to observe at firsthand the arguments and the evaluation. Further, to be effective, the session should be held in the first three to six months of the pendency of a case.

At the session, the lawyer of each party makes a concise, but thorough, oral presentation of the parties’ position, including the evidentiary support and the citation of legal authorities for that position. The presentations are followed by questions by the evaluator directed not only towards the parties’ lawyers, but also the actual decision makers of the parties. At the conclusion of the first session a break is taken and the evaluator retires to prepare an outline of what he/she believes to be the central issues in this case, and what, based on the presentations, he/she believes the likely outcome on each will be. The evaluator also estimates the likely cost in legal fees to each side if the matter is fully litigated. That evaluation is then shared with the parties either at a joint session, or more frequently, in private sessions (called caucuses). The reason why the private caucuses are more often used is that it somewhat allows more candor, more frankness and more practical realization of each party’s factual and legal strengths and weaknesses that frequently leads to a mediation offer to the evaluator who then shuttles between “caucus” to “caucus” to help parties come to a settlement based on the evaluation session. ‘The entire exercise may take a few days.

If settlement is not possible or the parties do not desire it, the evaluation session becomes the basis for a case management planning effort. ENE almost invariably results in a much better understanding by both parties of what the central and decisive issues in the case are. They can rationally plan a case development process making it less time-consuming and less expensive. The evaluator assists the parties in drawing up a written case management plan.

The proceedings are confidential and not admissible in the litigation itself. The evaluator’s evaluation is not transmitted to the trial judge in any fashion. Nearly one-third of the cases filed in the federal courts of U.S.A. are resolved during the ENA stage.

5.7.1 ENE Procedure in Bangladesh

In Bangladesh, no one recommend the ENE procedure in all kinds of litigations. Money loan recovery cases under the Artha Rin Adalat Ain, applications before District Judges in house building loan recovery matters, special loan recovery applications preferred before the District Judges by the Bangladesh Shilpa Rin Shangstha and Bangladesh Shilpa Bank and cases under the Insolvency Act that are all governed separately by separate and special procedural rules may have an amendment in their respective special legislations containing an option to take recourse to this particular method of A.D.R. The Code of Civil Procedure may be amended so as to include only mediation and non-binding arbitration for application to civil suits generally. ENE and the next method, namely Settlement Conference, will only confuse the general legal practitioners, judges and the average litigants and may generate widespread resistance to these hitherto unknown multiple choices, if all the methods of A.D.R. are included as options in the amendment of the Code of Civil Procedure. The type of cases and applications mentioned above are regulated by special legislations. Special procedures govern these cases and applications. Only a limited number of lawyers deal with these specialized litigations. It will not be difficult for these specialized lawyers to come to terms with ENE and Settlement Conference. Also, in my opinion, mediation or non-binding arbitration will not be an effective method of early and less expensive consensual disposal of such types of cases and applications where policy decisions are involved often on the part of the government, autonomous, semi-autonomous or government-controlled bodies that are often either plaintiffs/applicants or defendants/respondents in such cases and applications.

5.8 Settlement Conference or Judicial Conference

Settlement Conference or Judicial Conference may be held at any time during the life of a civil case upon request of a party or recommendation of a trial judge. The judge who is assigned to adjudicate the dispute in question is not involved in this method of A.D.R. Another judge of co-equal jurisdiction is requested to involve him/herself in this method. The settlement judge acts as a mediator or facilitator at the Conference, promoting communication among the parties, holding one-on-one sessions with each side, offering an objective assessment of the case and suggesting settlement options. The settlement judge has not the power to enforce settlement and does not communicate any information about the case to the trial judge. If settlement is reached, the parties sign an agreement, thereby avoiding the cost of trial or other litigation. If no settlement is reached, the case proceeds to trial before the previously appointed trial judge.

The success of this process is attributable to two factors. First, the parties get the advantage of utilizing for free judicial experience in evaluating the settlement value of a civil claim and secondly, they have the opportunity to separate their private and confidential negotiations from public ad judicatory trials

It does not recommend Settlement Conference or Judicial Conference for general use in cases tried under the Code of Civil Procedure. The users of this method will confuse it with “mediation”. It may be incorporated by way of amendment as an option in the special legislations covering the type of cases and applications mentioned under the heading “Early Neutral Evaluation” for the same reasons described therein.

5.9 Mediation Under The Family Courts Ordinance-1985

5.9.1 The Beginning

When he retired as the Chief Justice of Bangladesh on the I SI January 2000 It was contacted by the American Center at Dhaka to meet Mr. Steve Mayo, an attorney from San Francisco. He told us that he represented a San Francisco based voluntary organization of judges and attorneys called Institute for the Study and Development of Legal Systems, shortly ISDLS, which was then operating in a dozen countries outside U.S.A. to help implement the A.D.R. in harmony with the legal systems prevalent in each country. If Bangladesh is interested, ISDLS can help. As a first step, he suggested, we should form a small Legal Study Group (LSG). I took no time in jumping to the idea and formed an LSG. The LSG comprised of myself, Mr. Justice K.M. Hasan (then the senior most Judge of the High Court Division, later a Judge of the Appellate Division), Professor Dr. Shah Alam (then a member of the Law Commission, now the Chairman of the Faculty of Law, University of Chittagong), Mr. Anwar-ul-Huq (then Joint Secretary, Ministry of Law, Justice and Parliamentary Affairs, later elevated as a Judge, High Court Division) and Barrister Shafiq Ahmed (then President of the Supreme Court Bar Association), with myself as the Chairman. At the invitation of ISDLS we all four visited San Francisco in February, 2000 and obtained a firsthand insight into the working of A.D.R. methods and techniques in all types of courts in that city and also in San Jose. A strong team of judges and attorneys of San Francisco visited Bangladesh in April 2000. The Ministry of Law arranged an assortment of Assistant Judges from all over Bangladesh to meet them and to talk to them. The then Chief Justice and the then Law Minister extended all help and the meeting was held in their presence and in the presence of other senior Judges of the Supreme Court at the Judges’ Lounge of the Supreme Court. The American Center provided all the logistics. The ISDLS team explained in great details the mechanism and working of A.D.R. and convinced the participants that Bangladesh should give it a try without shaking up the civil justice delivery system and without amending any law or involving any extra expenditure to the public exchequer. It was found that of all the nearly 2000 statutes prevalent in Bangladesh, it was only the Family Courts Ordinance, 1985 which gave the trial court judge the jurisdiction and authority to “conciliate” between the parties both before and after trial. This statute was therefore considered to be the ideal starting point of A.D.R. in Bangladesh, because it would not involve any change in legislation or any extra public expenditure. Some of the Assistant Judges informed that they had mediated between the parties successfully in many cases following their own individual methods, but others pointed out that they did not feel encouraged to try conciliation between the parties under this statute, because they were entitled to one credit for holding one trial and did not get any credit at all for effecting a compromise decree. Their labour for 3 or 4 days was thereby wasted.

5.9.2 Training and Commencement of First Pilot Courts

ISDLS and the Legal Study Group then took a joint decision to start two or three pilot family courts at Dhaka Judgeship from June 2000. A Project Implementation Committee was formed with Justice K.M. Hasan as Chairman. It was at his instance that the Chief Justice and the Minister of Law were persuaded to make an amendment to the performance measurement of Assistant Judges. They would be given two credits, i.e., credit of holding two trials for performing one successful mediation and one credit, i.e., credit of holding one trial for two unsuccessful mediations. I may mention here in passing that all Assistant Judges are ex-officio judges of Family Courts. The credit would be enjoyed by all of them, whether they would preside over a pilot court or not.

ISDLS then arranged an experienced Mediator of the Ninth Federal Circuit Court of the U.S.A, Mr. William C. Rack, to visit Dhaka and impart training on mediation, both theoretical and practical, to 30 Assistant Judges assembled from all over Bangladesh, some lawyers and NGOs. The American Center, Dhaka and the Ministry of Law provided all cooperation. During the training for 3 days some of the members of the Legal Study Group, including myself, watched from the beginning to the end, what the subject matter of the training was, how it was imparted, what impact it made and how effective the training program was. We selected three Assistant Judges to operate three pilot courts at Dhaka Judgeship. Accordingly 2 pilot courts started functioning from 1 June 2000 and the other from 1 January 2001 at Dhaka Judgeship. Cases had to be transferred to those courts exclusively for mediation, parties were to be notified and during these preparatory days, the pilot courts, without wasting time, conducted trials of cases till sufficient number of cases were ready for mediation with the consent of both parties. It need not be emphasized that nothing would have been possible without the active support of the Chief Justice, Minister of Law and the District Judge of Dhaka and without the outside help of ISDLS and the inside logistic assistance of the American Center.

5.9.3 Continuous Training and Expansion of Pilot Courts

After a gap of two or three months we three, myself, Mr. Justice Anwar-ul-Huq and Mr. A. K. Roy (then Deputy Secretary of the Ministry of Law and now Judge, Women and Children Repression Prevention Court, Sylhet) started touring the divisional headquarters, namely, Chittagong, Rajshahi, Khulna, Barisal and Sylhet imparting training both to Assistant Judges coming from each Division and to the local lawyers on mediation techniques for two or three days on each visit. We also spread out to district headquarters, namely, Comilla and Mymensingh, and imparted the same training to other batches of Assistant Judges and lawyers. Sometimes the training sessions were inaugurated by the Chief Justice of Bangladesh and sometimes by the Minister of Law. Mr. Justice K. M. Hasan made himself available on most of the occasions to apprise the audience of the progress of mediation in the family courts of Bangladesh. Mrs. Mary Ann Peters, Ambassador of the U.S.A to Bangladesh, made an invaluable speech at the opening of the training session at Comilla. After a year or so we started taking one of the Dhaka family pilot court judges to narrate their mediation experiences and achievements and to interact with the trainee participants. Everywhere the trainee participants volunteered immediate participation. Needless to say the Ministry of Law and the American Center were cooperative on each occasion and rendered all administrative and logistic assistance required.

After completion of a training session at a certain place, a Pilot Court was set up in that town or elsewhere within the jurisdiction of the judgeship where the training was held. The District Judges followed the matter through. Now there are 3 pilot courts at Dhaka, 2 at Chittagong and 1 each at Sylhet, Rajshahi, Khulna (not exclusive though), Bogra, Jessore, Rangpur, Kushtia, Comilla, Faridpur, Barisal and Mymensingh. Out of 65 districts, only 14 have pilot courts, but it is our information that not all districts need an exclusively mediation pilot court, because the number of family cases does not justify it[35]. It is also our belief that many districts, where there is a genuine need for an exclusively mediation pilot court, can well be served initially by transferring to those districts some Assistant Judges who have already received training from us. It is however necessary to keep the training process ongoing so that all the districts of Bangladesh are covered by pilot courts. In due course, all districts will have at least one exclusively mediation court and they will no longer be called pilot courts.

5.10 Lawyers’ Resistance – An Unfounded Apprehension

We have talked to a number of lawyers of all ages all over the country. Contrary to what anti-lawyers believe, lawyers do not like their piled-up cases to rot in their sheresta (chamber) for years and decades together. They admire and desire a quick resolution of disputes and they dispute the proposition that the quicker a case goes out of their sheresta the lesser is their income. On the contrary, the earlier a case goes out of their sheresta by way of final disposal, the more it is replenished by new cases. The more the litigant public comes to know that the legal and judicial system delivers justice speedily and with less expense, the more the public knowledge inspires confidence in the system itself and the more the potential litigant who would not have come near the court premises would flock to the courts for results of a similar nature.

A year after the first family pilot court was started at Dhaka Judgeship I attended a joint meeting of the pilot court judges, lawyers of all courts including pilot family courts, with Mr. Justice Anwar-ul-Huq, the District Judge, Dhaka and the representatives of the American Center. Those lawyers who had engagements in courts besides the family court told me that they had lost their income from the family courts because of early disposal by mediation, but their other earnings from other courts amply made up the loss. By then a group of lawyers had grown up, both male and female, who had built up exclusive practice in family courts, leaving their position as juniors in some senior lawyers’ chamber. They told me that hapless women, having received speedy and inexpensive justice through mediation, had brought in other clients for them, similarly situated, and this way they themselves, not being so senior in the profession, had been obliged to engage fresh entrants to the profession to help cope up with new work.

One Senior Assistant Judge who is a family pilot court judge at Dhaka told me that after he received training from Mr. William C. Rack and listened to my words of encouragement, he was unconvinced and pessimistic. He thought those were loud sermons from a high pulpit unsuitable for this country. After his selection as a pilot judge he was further depressed. He thought he was being wasted by placement on a job that had no future and no safe stepping-stone to the next hierarchy. He knew about the adamant nature and uncompromising attitude of the litigants of Bangladesh. Now he keeps on telling me whenever we meet that his apprehensions did not come true. He is so successful with mediation that there is a beeline in his court for mediation after mediation. He derives immense job satisfaction from out of his successful mediations. Whatever be his future career he will go down in the legal history of Bangladesh as one of the pioneer A.D.R. judges. Other pilot judges have told me of their many and varied experiences of innovative mediation exercises, combination of direct and facilitative mediation, novel way of realizing settlement money by installments if not paid on due date etc. Their experiences made me wonder if I knew all about mediation.

The key to success of A.D.R. in Bangladesh lies in the manner of its introduction. A.D.R. is no longer an unheard of concept of dispute resolution among judges, litigants and lawyers of Bangladesh. The Family Courts all over Bangladesh are actively engaged in A.D.R. The pilot family courts are only exclusively engaged in mediation, but other Assistant Judges, who received training in mediation, are also mediating apart from trying cases. The mediation output of all the Assistant Judges, taken together, is something to be proud of. The Ministry of Law only needs to collect, maintain and update all relevant statistics in this regard.

Before we extend the frontiers of A. D. R. to other types of litigation, there suggest the following:

5.10.1  Amend the Code of Civil Procedure giving the trial court an enabling and discretionary power to refer a case or part of a case for only mediation or non­binding arbitration at any stage of the suit. Although the proper stage to do so is after receiving the written statement, I would suggest ‘at any stage of the suit’ to cover backlogs. When the amendment comes into force, the judges will be trained to refer a case for mediation or non-binding arbitration after receiving the written statement in all suitable cases, but they will be further trained to refer pending cases for mediation or non-binding arbitration when both parties agree or according to the judge’s own discretion, the stage of the suit not being very important. It is necessary to define mediation and non-binding arbitration correctly and precisely in the amendment to avoid unnecessary dispute about their nature and capture.

5.10.2  Make the presiding judge, a judge of co-equal jurisdiction, lawyers of the local court or a court of adjacent jurisdiction of more than 10 years’ standing, and Private Mediation Firms, adequately staffed by either experienced ex-judges of not less than 10 years’ standing or retired judges and/or non-practicing lawyers of not less than 15 years’ standing, recommended by the District Judge and approved by the Chief Justice of Bangladesh, as qualified for appointment as mediator or arbitrator. As a matter of practice the presiding judge may not assume that function, but the enabling provision should be there, because in many places a judge of co-equal jurisdiction or a lawyer of stated standing or a private legal firm might not be available. The District Judge will keep a constant eye on A.D.R., provide the Ministry of Law with regular up-ta-date information about disposal of cases by mediation by various pilot courts, amount realized each month by the pilot courts, pending mediations in the pilot courts, comparison in terms of disposal and realization of money with the rate of disposal and rate of realization of money prior to mediation, amount realized by execution of decree on a previous 5-year average prior to mediation etc. and oversee the progress of A.D.R. diligently and constantly.

5.10.3. Before introducing A.D.R. in any other field intensive training of concerned judges, lawyers and the court staff is a must. The training will be on a continuous basis and JATI should have an instructor on its pay roll to impart training on different methods of A.D.R. to different tiers of trainee-judges, including new entrants to the Judicial Service. A batch of trainers should be created to take up this arduous job in all the districts.

5.10.4. A. D. R. will have a-smooth transition if it is introduced on a pilot court basis. The performances, results, reactions among pilot court judges, practicing lawyers and the litigants should be carefully monitored and recorded and suitable adjustments in the A. D. R. project should be made at each stage of extension after an exhaustive study of the experiences gained.

5.10.5. Mediation or non-binding arbitration, in my opinion, may not be a suitable form of A.D.R. in big commercial cases involving heavy amounts, Artha Rin Adalat cases, applications before the District Judges in house building loan cases, Bangladesh Shilpa Rin Shangstha and Bangladesh Shilpa Rin cases and insolvency cases under the Insolvency Act. We have suggested Early Neutral Evaluation or Settlement Conference as the proper result-yielding method of A.D.R. in such cases. They would advise an amendment to the special legislations covering these types of cases enabling trial judges to refer a case or part of a case at any stage of the suit for application of ENE or Settlement Conference, although the ideal time to start this process is after receiving the written statement. I am in favor of adding ‘at any stage of the suit or application’ to cover the backlogs. Also ENE and Settlement Conference should be suitably defined to avoid any conflicting interpretation of these concepts.

5.10.6. The Government is the major litigant in this country, either as a plaintiff or as a defendant. Under P.D. No. 142 of 1972, the Government is a necessary party in all title suits, suits for specific performance of contract and so on. In most cases the Government do not make any appearance, because the Government do not find, at any rate for the time being, any interest of the Government involved in the case. Yet when the parties in dispute compromise the matter, even without mediation, the option remains for the Government to challenge the compromise at a belated stage, claiming an interest in the subject matter of litigation. The Government is thus responsible in many cases to prolong the litigation. To make the A.D.R. successful, P.D. No. 142 of 1972 should be amended providing that where in a case covered by p.a. No.142 of 1972, the Government do not enter appearance or after entering appearance do not file any written statement, or after filing a written statement do not contest the case, any resolution of the dispute through A.D.R. or otherwise by the other parties to the dispute would be binding on the Government.

5.10.7. Labor Courts and Small Causes Court are the two areas where mediation should be introduced immediately on a priority basis, amending the two special legislations. The people of Bangladesh are hungry for justice. It is for us, the legal and judicial community, to respond to this public need in a well thought-out.  
 RULE OF LAW AND  LEGAL EMPOWERMENT:  TOWARDS  AGENDA FOR CHANGE

 After discovering the route to America, Columbus felt that even the sky was not beyond his reach. An angry courtesan once asked him whether he truly believed that he was capable of doing anything. When Columbus gave him a positive nod, the courtesan dramatically presented an egg and told him, “Fine, then place this egg on the table but remember one thing, it must stand straight.” Columbus took that egg, broke the lower part of the shell and with a smile he placed it. The present legal system of most of the developing countries have become like this broken eggshell. Following Western models, we have established our legal system and our main emphasis is on maintaining the formal structure based on a top-down. However, if the eggshell is broken, the yolk is bound to come out and that, actually, is what is happening in Bangladesh at present. With too much formalism and too strenuous emphasis on the normative part of the law, the poor are left with virtually no access to formal justice and legal aid. Even the poor do not feel motivated to go to a formal court when they have the opportunity to do so to seek justice.

In last few decades, “Rule of Law”, which is defined as equal treatment for every citizen under the law, equal legal protection and accessible justice has become an integral element of Good Governance[36]. The establishment of a society based on rule of law demands a set of strategies or ideas and in order to support these ideologies and strategies, the “rule of law orthodoxy” was introduced. It is an instrument, an institution, a tool “…geared toward bringing about the rule of law”[37]. However, in recent years, it has been seen that this concept is not working effectively.

The problems of the present Rule of Law orthodoxy are many folds. First, based on a top-down approach, it solely concentrates on state-dependent legal institutions building or rebuilding courthouses, constituting legal reforms, training of judges, lawyers, etc. As a result, though the supply side is well equipped, the demand side is often not even touched. Second, it is based on the assumption that the eradication of poverty depends on smooth functioning of market mechanisms and legal reforms should be aimed at to create such an environment, which will help the smooth functioning of the market in a society. Thus poverty alleviation method may be compared with “trickle down”, which has failed a long time ago.

Thirdly, by emphasizing on foreign expertise and methods, developing countries are blindly following strategies without considering whether it would suit their context or not. This situation becomes worse when it accommodates too much formalism. De Soto noted that this situation actually forced most of the citizens to “…run into Fernand Brudel’s bell jar, that invisible structure in the past of the West that reserved capitalism for a very small sector of the society”[38] . Fourthly, the present legal system, every now and then, considers law according to its ‘normative aspect’ and thus denies ‘the real-world components and ‘societal context’ [39]. As a result, the present context of rule of law fails to ensure the access to justice for all, to consider a primary element –“the people, with all their cultural, economic and psychological features”, to bring the judiciary to the people, to meet their needs.

Legal empowerment has come up as a response to these problems. It deals with the people who are left out of the Columbus’ eggshell. It aims to arm them with legitimate

instruments like legal aid or consciousness, to help them to take control of their life. It moves out of the usual domain of law (in its normative sense) and emphasizes on empowerment. Its primary focus is on eradication of poverty through steps taken by the government to “…give all citizens, especially the poor, a legitimate stake in the economy, thus making it the right of all citizens, and not the privilege of a few, to have access to user and property rights and other legal protections”. But an important issue to remember is, it is not contrary to rule of law rather it “…both advances and transcends the rule of law”. It demands a holistic approach to include the poor through both formal and informal legal systems Usually the formal system is trapped in the hand of the minorities, the majority of the population is not affected by it. Legal Empowerment, thus, is both a process and a goal to let the majority use the law to take control of their life. In other words, the goal of Legal Empowerment is“…to increase disadvantaged populations’ control over their lives” and the process is-

“The use of legal services and related development activities”.

Metaphorically speaking, it is about rebuilding the Columbus’ eggshell where the yolk would not come out of it. Legal empowerment advocates for increasing and effective participation of the civil society to ensure the participation of the poor in the legal procedure. Taking into consideration the need of the poor, issues and strategies depend on the necessity of the poor and the top-down approach is converted into a bottom-up one. Moreover, the informal justice sector is given due consideration.

Within this theoretical and empirical context, this article describes the state of both formal and informal justice systems in Bangladesh and their problems in ensuring access to justice for the poor. It then recommends an integrated and interconnected model of legal institutions working towards legally empowering the poor.

 6.1 FROM LEGAL EMPOWERMENT TO ACCESS TO JUSTICE

People cannot be legally empowered unless legal services are accessible to them. Access to justice by the poor can empower them and that is what the capitalism may not always be able to provide. The ideas and institutions brought by capitalism may not ensure access to justice. Instead, it may be “…a myth, factually false, politically conservative and deliberately fostered by the most visible embodiments of law”.

In other words, if a legal system depends only on the formal structure and ignores “…counseling, mediation, negotiation and other forms of non judicial representative, the door to justice may be locked for many. Formal system mustwork hand in hand with the informal sector in a comprehensive manner and to make itwork a close look at both of them is necessary.

 6.2 FORMAL AND INFORMAL LEGAL SYSTEMS IN BANGLADESH

Taking into consideration the informal ways of dispute resolutions, we can divide the overall justice sector into two parts- the formal justice sector and the informal one. From the highest tier, i.e., the Supreme Court to the lowest one, i.e., the village court has been included in the formal justice sector. On the other hand, the informal sector includes shalish (informal justice conference) and NGO-organized mediation.

Part VI of the constitution of the people’s republic of Bangladesh deals with the formal justice sector. According to the constitution, the Supreme Court of Bangladesh is the highest court. It has two divisions- the high court division and the appellate division. The district and session courts lie below the Supreme Court. Headed by a district judge (formally titled as District and Sessions Judge) a district court deals with both civil and criminal matters. Metropolitan cities now have separate criminal court as Metropolitan Courts of Sessions to deal with crimes committed within the metropolitan areas. Bekiw the sessions court, the next lower tier is the magistrate’s court, which deals with crimes punishable with imprisonments of up to 5 years.

In case of civil matter, the bottom most court is the court of an assistant judge. The village court lies beneath the magistrates court (criminal matter) and court of assistant judge (civil matter)[40]. Except the magistracy, all other judges are members of the judicial service “which is controlled and supervised by the MLJPA and Supreme Court” .[41]The magistrates are the members of the administrative service and their control lies in the hand of the executive branch through Ministry ofestablishment and the Cabinet Division. Based on the types of crimes and issues dealt with, we have found two types of courts, namely civil and criminal. Section 9 of CPC allows the civil courts to have jurisdiction to try all suits of civil nature. However, the nature of jurisdiction varies for different civil courts. In total, four types of jurisdictions are known-

Territorial jurisdiction, which allows every court to have its own local or territorial limit; pecuniary jurisdiction, according to which “…a court will have jurisdiction only over those suits, the amount or value of which does not exceed the pecuniary limits of its jurisdiction.” Section 6 of the Code of Civil Procedure, 1908 and section 18-21 of the Civil Courts Act, 1887, deals with pecuniary jurisdiction; jurisdiction as to subject matter which empowers different courts to decide different types of suits and original and appellate jurisdiction which allows a court to entertain and decide suits and appeals (Sec 9, CPC, Bangladesh, 1908). Section 6 of the Code of Criminal Procedure, 1898 provides the foundation of five classes of criminal courts beside the Supreme Court. They are

i. courts of the session judge

ii. courts of metropolitan magistrate/ District Judge (outside the metropolitan area)

iii. court of 1st class magistrate

iv. court of 2nd class magistrate

v. Court of 3rd class magistrate[42] .

 Among these justice institutions, in courts of the session judge, on being conferred with the session power, the district judges and the additional district judges act as the sessions judges while joint district judge acts as assistant sessions judges, respectively. In both criminal and civil cases district and additional district judges are both courts of trial and appeal. For example, in criminal cases, these judges are trial courts for crimes which are punishable with imprisonment of more than 10 years, while they also hear appeals against conviction and sentences of upto 5 years of imprisonment passed by joint district judge or Magistrate, 1st Class The court of metropolitan magistrate is situated in metropolitan area and the other three classes of court are situated in district areas.

Besides this, there are also courts of – (a) district magistrate and (b) additional district magistrate. Appointed by the government, the deputy commissioner performs the duties of a district magistrate and additional deputy commissioner acts as an additional district magistrate. Following the Village Court Ordinance of 1976, the Union Parishad conducts the village court that deals with petty and non-compounding disputes.

In the informal sector, the two well known justice procedures are- shalish and NGO sponsored mediation and justice conferences. Shalish actually means- “the practice of gathering village elders for the resolution of local dispute”[43].

Shalish can be conducted in various forms- it can be arbitrary or mediatory or a blend of the two. Shalish- the arbitrarily one is known as traditional shalish conducted by the village elders. As they are considered as respected or powerful, their decisions always carry a great weight[44] .With a credible past, in a case of a dispute resolution, at present, this particular system either had “completely broken down” or had “become largely inoperative”.

Relying on the basic principles of shalish, i.e., being prompt in problem solution and providing equitable justice, NGOs are using it to ensure access to justice for the poor. Developmental and legal NGOs in Bangladesh are contributing to modernize the shalish process to make it more acceptable and equitable. They “…have conducted training and offered advice and assistance to shalish members including training in law, providing legal advisers and providing legal aid where recourse to the formal system was required.” Thus, the NGO-coordinated shalish, also known as Alternate Dispute Resolution (ADR), is actually a redefinition of the traditional shalish which adds “…specialized training, the appointment of women mediators or the convening of mediation panels with specialty knowledge of women’s rights or other issues”.[45] Thus, the NGOs are trying to provide a high-breed justice to the poor that aims to utilize the ‘bests’ of both the formal and informal justice institutions.

 6.3 BARRIERS TO ACCESS TO JUSTICE (FORMAL RULE OF LAW) FOR THE POOR

Despite the working of a fully structured formal justice systems, traditional informal systems and NGO-sponsored modified systems, there are numerous problems that impede access to justice for the poor. The problems related to access to justice in formal systems has two dimensions. The first one is to identify the hurdles that hinder the access to court . In this paper, we tried to identify these problems under the title ‘procedural and systematic problems of formal court’. The amount of literature about this particular dimension is quite huge as well as the number of identified problems. However, the second dimension is rarely touched. Anderson put it in this way-“access to justice required more than being able to present a grievance in front of a court, .. or before a mediation panel, crucially provided your claim is recognized as legitimate, access includes an effective remedy whereby your right is translated into reality” . Thus, the problem lies in “translating right into reality”.

The formal system often fails to find the effective remedy or in other words, remedy to the court is many a times quite unacceptable to common people. The very word “justice’ has two different meanings- rather than going by the book, the poor often prefer justice to be either realistic or harmonistic. We have divided the discussion on this second dimension into two parts- the first part deals with the theoretical dilemma concerning the idea of justice and the second part deals with the mindset of the rural poor.

 6.4 THEORETICAL DILEMMA

This section takes into account two different dichotomies. One of them is retributive versus restorative justice and the other one is distributive versus commutative justice.

 6.4.1 Retributive versus Restorative Justice

In the formal legal system, justice follows the retributive principle where the liability is vested upon the State to “…fix the legal guilt, not the factual guilt.” Any crime is considered against the state and the state, after being sure that the very person is legally guilty and liable under the law, takes necessary arrangement to ensure that “…the [legally] guilty must get just deserts”. This particular model emphasizes on the process and makes sure of causing the similar pain in return of pain. On the other hand, restorative justice emphasizes on restoration of the harmony that the particular crime had disturbed. According to Zehr, “It creates obligations to make things right. Justice involves the victim, the offender, and the community in the search for solutions which promote, repair, reconciliation and reassurance”. So the basic difference between retributive and restorative justice is whereas the former demands the punishment of an offender and considers it as the only way of preventing further crime, the latter tries to heal the wound and bringing back the harmony by allowing the offender in taking part of the healing process . For instance, let us consider a case. In a village, once an unmarried woman got pregnant. Later, the man who allegedly had a physical relationship with that woman admitted the guilt but refused to marry her. Now, the retributive justice would say, the court will take necessary action against the man once the guilt is proven. The action may include imprisonment, compensation etc. However, it could have created certain problems, which the formal system would fail to address. First, taking into account the social background, the girl might never get married. After getting out of jail, the man may take revenge etc. On the other hand, in this case, restorative justice would try to reestablish the harmony. Following a restorative principle, the man may be ordered to marry the mother of his child if the woman wishes or he can be fined with ample amount of money so that the woman will not face any trouble in future. Interestingly, our several field research projects have found that most people of the rural part of Bangladesh prefer the restorative justice and as the formal system does not allow it, they tend to depend more on the informal system like shalish.

 6.4.2 Distributive versus Commutative Justice

According to this dichotomy, commutative justice tries to ensure restorative justice within legal bindings. At one end, it tends to follow the law and on the other hand, ensures equal exchange in all cases in order to restore the status quo. It means, “The party who has lost resources to another has a claim for the amount necessary to restore his original position” [46] However, distributive justice is more radical than commutative justice. Pointing out that the legal bindings may often fail to ensure equal exchange, it emphasizes on defining what is just according to social standing of an individual. Based on the principle that profit or loss in case of seeking justice may depend on the relative power of an individual, it demands that while delivering justice, it must take into consideration the impact it will create on an individual’s life.

For the case that has been mentioned in the previous section, commutative justice may as well fail like retributive one as due to legal bindings, it will not consider the impact of the justice imposed on the unmarried mother of a child. Distributive justice on the other hand will consider the social status and outcome of that particular incident on the individuals concerned. If both the man and woman share an equal responsibility in that particular relationship, justice should distribute the burden of restoration equally on both. Therefore, either they will marry each other or the father of the child will provide allowance for his unborn child until he/she becomes 18 years old.

The outcome of the analysis of these two dichotomies is as formal legal systems depend on legal bindings solely and emphasize on law in its normative sense, it always ignores the meaning of justice as reflected by the society or by the individuals living in the society. People have repeatedly expressed in our field level focus group discussions and in-depth interviews that this so called justice- be it retributive or commutative, does not reflect with their own understandings of justice. In case of getting justice, their primary concerns include not punishment but the restoration of harmony and compensation to the victim.

 6.5 Psychological Barriers

The failure of the formal legal systems to understand the mismatch between the peoples’ perception of justice and the justice as offered by the formal rule of law may well be forcing the poor to move towards the informal legal system. The poor may confront a psychological barrier to go the formal court. For further illustration of this point, let us consider a situation where the formal system is functioning smoothly.

Systemic and procedural problems like bribes, corruption, years of backlog and delays have finally been eradicated. What will happen in terms of access to justice for the poor in this ‘ideal’ or ‘perfect’ rule-of-law situation? Will the disadvantaged or the poor people rely on the formal system more? We argue that the answer to the last question will be a “NO” because of formal systems’ adherence to formalistic and retributive principles. It is often argued that poor people tend to use informal systems in Bangladesh because the access to justice through formal legal system is troublesome and faulty. Several recent studies have also indicated that majority of rural people get access to justice through the non-formal systems. However, an ongoing research conducted by World Bank and BRAC revealed an interesting point.

According to the preliminary findings of this research, even when the situation is ideal, i.e., the formal legal system is working without any flaw and existence of any political or economic barrier, the majority of the rural people will still seek justice from the informal systems. To most people, this particular system is unfamiliar as it is not the “son of the soil”, but brought in and imposed by the foreign rulers mainly to serve their purposes and thus they act against the people of this country. Besides, the laws, their procedures, arrangements, and people associated with it are unknown to majority of the common people. This alien feature of the formal legal system make the formal courts as elitist institutions by the poor. In fact their perception is not all only ‘perceived’ as after the colonial period very little was done to make formal justice institutions people oriented.

The elites resumed the role of colonial rulers and retained the rigid nature of the system that de jure excludes marginalized people from it. This particular psychological barrier will be difficult to address even if the formal legal system promises a fair trial for the poor.

“People’s participation” (which can be defined as the people’s way of understanding about justice, crime, punishment etc.) in the legal system is what the rural people demand and that is exactly what the formal legal system defies. They do not have any say about how the problems are to be solved, who will solve it, and what will be the outcome. Instead, all formal court procedures are ordained in a manner that goes against their understandings. The point is, many of the procedures, (i.e., from addressing the problem of the rural people to deliver the verdict),  followed by the court is either unacceptable or beyond understanding of the poor even when the procedures are followed with utmost fairness.

Thus, the gap in what is delivered and how the deliverables are perceived by the poor act as a psychological barrier for the poor to access to formal justice. This particular psychological barrier has two dimensions- (a) the mismatch between the way justices is served in formal legal systems and the way people think it should be done and (b) the lack of control they are able to exercise upon this system. Moreover, in Bangladeshi context, the systemic and procedural problems of the formal legal systems exacerbate the situation for the poor. For example, due to its rules and lack of resources, the court considers some problems while leaving the others out. The nature of the problems of rural people guarantee that majority of these will be left out by the court. So, at the very first step they are rejected from getting access to formal legal system because of the apparent pettiness of their problems, which create the notion that court is not for them and ultimately leads to the first step to keep a distance from the court[47].

 SUGGESTIONS

It is clear, from what has been stated above, that the present code of civil procedure after the Amendments of 1976, 1999 and 2002 is an attempt to provide justice keeping in view, inter alia, the basic consideration that justice should not be delayed. The change made by the Amendments Acts are, however, not sufficient.

The following suggestions are made with a view to reducing delay in civil litigation:

•  There is one provision, which, if used effectively by courts, can hold to cut short the litigation. Order 10 rule 2 provides that at the past hearing of the suit, the court shall with a view to elucidating matters in controversy in the suit, examinee orally such of the parties to the suit appearing in person or present in court, as it deems fit, and may orally examinee any person, able to answer any material question relating to be suit, by whom any party appearing in person or present in court or his pleader is accompanied. Thus, this provision casts a duty on the court to examine the parties orally before settling the issues. In practice, however, this provision is simply ignorant and issue is invariably raised from the pleading of the parties. If the judge examines the parties orally, it is quit likely that many a time truth will come out immediately in spirit of what is started in the pleading. This will obviate the need for examining numerous witnesses on either side on a point of disputed fact. In the humble opinion of the author, the use of provision alone, more than anything else, can cut short litigation substantially.
•  Even though the law commission[48] recommended deletion of a statutory note under season 80, it has been retained. It is submitted that because of two reasons such notice is not necessary: firstly, that state or public officer should not have a privilege in the matter of litigation as against a citizen and should not have a higher status than an ordinary litigant in this aspect. As a matter of fact, such notice is not necessary for taking proceeding.

     3. Certain provisions, on the other hand, are not properly applied e.g. section 99and 99-A have not been usually pressed into service by courts or even by parties. Similarly, sessions 35-A and 35-B compensatory costs in respect of false or vexatious claims or defenses’ and causing delay are rarely used by courts or even by litigants. Again though order 41 rule 11 expressly authorizes and appellate court to dismiss First Appeals summarily by recon ding reasons, this provision is not known to be used by appellate courts other high courts, and all First Appeals are admitted by appellate courts as a matter of course. Future, though order 41 rule 3-A prohibits an appellate court to grant stay when the appeal is time-barred, in many cases appellate court grant stay or injunction subject to the limitation being condoned this is clearly contrary to be legislative intend reflected in Rule 3-A. Similarly, in spirit of the specific provision in order 41 Rule 23-A for ordering remand when the case does not fall within the sweep of Rule 23 or Rule 25, generally, it is not resorted to by appellate courts.

4. Sometimes, the government files and appeal even though there is not substance in it or the point is cover by the judgment of the Supreme Court, courts are, in these circumstance, constrained to observe against a litigious approach adopted by the government.

In state of Maharashtra v. Vinayak Deshpande,[49]the Supreme Court had to observe:

“It is indeed difficult to understand as to why the state of Maharashtra should have prepared the present appeal all. We do not think it is right that the state Government should lightly prepared an appeal in this court against the decision given by High Court unless they are satisfied, on careful consideration and proper scrutiny that the decision is erroneous and public interest requires that it should be both brought before a superior court for being corrected. The state Governments should not adopt a litigious approach and waste public revenues on fruitless and futile litigation were their no change of success.”[50]

 5. In any case the court issues a notice to the government or public bodies at the admission stage so as to settle the case immediately were the point at issue is such the regular hearing is hardly necessary and the matter could be decided promptly. Unfortunately, however, the government machinery is very slow to act and, more often than not, there is no response to the notice and the court is constrained to admit the matter which remains pending for a number of years when it could have been disposed at the initial stage.

6. It is possible to reduce the burden of cases on regular courts by exploiting the possibilities of setting up other forums were the disputes between the parties can be settled more informally and speedily, though under some kind of judicial supervision, e.g. separate Family Court have been set up to deal with matrimonial cases and other disputes relating to family affairs. Members of source courts may be appointed from amongst serving or related judges. Similarly, if more tribunals are created to deal with disputes arising under various laws, the burden on regular courts will be reduce to that extend. Since this family courts and tribunals will be subject to be supervisory jurisdiction of the High Court. It will ensure that they decide the case coming before them judiciously and in accordance with law and not arbitrarily or capriciously.  In this connection, it will be appropriate to mention of the experiment of holding Conciliation Courts and Lok Adalats which is being carried on in many states. Such Adalats are held at various places from time to time and apart from judges and lawyer, social workers are also inviting to attend the proceedings and help the parties in settling their disputes informally. This experiment, it is submitted, is worth making in all states.

7. Last but not the least, all agree the justice must be cheap and expeditions. However, in order to provide cheap and expeditions justice, it is necessary to appoint competent judges. But the present emoluments of judges are so meager that they do not attract competent people of the bench. If society wants cheap and expeditious justice it must also bear the expense of competent judges. The principle that “justice must be cheap but judges expensive” is though universally recognized, never acted upon.

Before we conclude the discussion it is worthwhile to quote the following observations of eminent jurist[51].

“To my mind the solution is very simple. See that the men you appoint are the proper ones. Find judges with and alert and active mind. What is more important, pay the judges better, give them a better pension, and enforce better conditions of service. The usual solution put forward is to increase the number of judges. But if the men selected are not really competent, Parkinson’s Law will come into play. The more the judges, the greater will be the load of work.”