ALTERNATIVE DISPUTE RESOLUTION: BANGLADESH PERSPECTIVE

1
Mohammed Yasin
2
&
Mohammed Mohiuddin Khaled
3
Abstract
The term Alternative dispute resolution is foreign historically, but the concept as
culturally ingrained in the long practice of village administration system of !engal" #t has
no become a very contemporary concept for third orld organism for the reason that,
the marginal people of third orld, such as of !angladesh are in parado$ of myths of law
and order system of a traditional design" This tradition is, hoever, not originated from
the indigenous cultural roots, but from !ritish colonial inheritance, hich ere prepared
and applied to dominate the natives, and afully notable that, from the pre%assumption of
a dissimilar culture and society" &o, no the clash moment of our la and order system is
very apparent, and the social philosophers are searching for an alternative ay of dispute
resolution" #n this paper, e have an intention to see' and evaluate their thin'ing,
propositions and intellectual or's, line up the fre(uent goal of those propositions and
(uestioning some criterion hich is folloed by them" As result, the philosophy of this
paper is based on appraising and searching the most effective ays for resolution of
disputes other than formal legal system, not only non%state, or non%formal, but originated
from the rooted culture of the society"
Alternative dis!te res"l!ti"n: ran#e and "b$ective
Alternative dispute resolution covers a range of means to resolve conflicts in a method
other than formal litigation" The modern A)* movement originated in the +nited &tates
in the 1,-.s, inspired by a desire to avoid the cost, delay, and adversarial nature of
litigation, in order to provide more effective, efficient and satisfying dispute resolution,
and thereby improving the (uality of /ustice and citi0en perception of it" The present
interest in A)*, in many parts of orld is motivated for four principal concerns 12enn,
3a0el4 1,,,54 1a5 avoiding the cost and delay of court proceedings and coping ith court
overcroding, 1b5 improving access to /ustice, 1c5 offering more efficient methods of
dispute resolution, and 1d5 offering the public more chance to be involved in dispute
resolution process"
1
The paper as prepared for and presented in a seminar on Alternative Dispute Resolution: Bangladesh Perspective
organi0ed by 6a 7lub, on &eptember 2-, 2..8, at 9".. pm in the academic building 2, &outhern +niversity
!angladesh"
2
&tudent, )epartment of 6a, &outhern +niversity !angladesh"
3
Associate :rofessor & ;$%7hairman, )epartment <f 6a, +niversity <f 7hittagong & Advisor, )epartment <f 6a,
&outhern +niversity !angladesh"
Page 1 of Alternative Dispute Resolution: Bangladesh Perspective
Alternative dispute resolution 1A)*5 techni(ues, hich are designed to resolve civil
disputes outside the auspices of the formal /udicial system, has ta'en diverse forms,
including court%ordered arbitration, summary /ury trails, private ad/udication, corporate
=mini%trials>, and community mediation" :roponents say it saves time and money for
litigants, eases the burden on an overloaded court system, and focuses on negotiation and
compromise rather than confrontation and ma'ing liable" )etractors, hoever, claim
A)* is basically designed for business disputes and the affluent class and could narro
the access of minorities and the poor to the formal /udicial system"
?o, from the e$perience of +&A and +K, the court reformers are see'ing to foster its
use in developing nations" !ut it is a prominent fact in this instant that, the concept of
A)* in the marginal countries is motivated to a desire to revive and reform traditional
mediation mechanisms of their homespun cultural roots, hich includes not only civil
character of cases but also some sort of disputes of criminal character" &o, the goal of
A)* movement in third orld countries li'e !angladesh initiates a movement for change
in society, the legal system and /urisprudence of la"
T%e Pr"ble& Area: r"!#% r"ad t" realit'
!angladesh is a small country ith an area of 192,--@ s(" 'ilometers" #t has a population
of about one hundred and thirty million" !angladesh is almost surrounded by #ndia ith a
small part of its eastern border shared ith Myanmar" This country on its independence
from :a'istan in the year 1,-1, under the process of a bloody ar" The vast ma/ority of
the population of !angladesh is Muslim by religion including some 3indus, !uddist,
7ristian and a fe tribal Adivashies" Most of the population are of spiritual mind in
nature but not conservative anyay" They are sometimes misled by the conservative
politicians" Most of the political groups often use religious sentiments for their political
gain"
!angladesh inherited a colonial legal system from the !ritish by means of historical
disaster" ;arly colonial government introduced the ;nglish 6a and :olity in #ndia hich
included present%day !angladesh" The ;ast #ndia 7ompany introduced the civil military
systems in the #ndian subcontinent" This imposition had resulted to the conversion of
simple indigenous la of #ndia into the comple$ legislative and /ustice systems of the
!ritish colonial authority" After the end of the !ritish colonial rule in 1,9-, !angladesh
ent under the ruling of :a'istan" !ut, the legal system had minimal changes during
1,9-%1,-1Auntil the independence of !angladesh from :a'istan" Thus, the trends of
/udiciary and sociology of modern !angladesh la indicates that over the last 39 years, it
has been struggling ith an inherited /udiciary, hich is (uestionable from its on
conte$t"
?o the fact is that, the /udicial system of !angladesh is /ammed by huge bac'log suites
and cases similar to some other common la countries" !ac'log of cases in the courts,
and idespread /udicial corruptions, put the condition of la and order in !angladesh at
ha0ard" +& ;mbassy in )ha'a in its commercial guide pointed out that, in !angladesh
over ten years can pass beteen bringing a court case and e$ecuting a /udgment and there
is no penalty for delaying proceedings" &uch a position of legal situation influences the
orld entrepreneurs badly ho are interested in investing money in !angladesh, as ell
as it suffers the poor peoples of the country"
Page 2 of Alternative Dispute Resolution: Bangladesh Perspective
)elay in disposal of cases in !angladesh has reached a point here it has become a part
of in/ustice, a violator of human rights 1Alam, M" &hah4 2...5" At this conte$t, an
important substance is that, in a society of class differentiation the prolonged process,
hich is adversarial and belligerent in nature, places the financially stronger party at an
advantageous position" #f the /udicial system functions substantively and in accordance
ith the procedural las, the increasing scope for delays can transform it into a system
hich may become procedurally hostile toards marginali0ed sections of its people,
defeating the goals of social /ustice" There can be remar'ed some crucial reasons for
delay in the functioning of our civil /ustice system 1Alam, M" &hah4 2...54 1i5 the
adversarial character of legal system hich provides ide maneuvering poer to the
layers, and presupposes lesser initiative and relative passivity of the /udgesB 1ii5 vested
interest of the layers for lengthening and delaying the process, for they are often paid
for their appearance in the courtB 1iii5 commonly made interlocutory orders and appeals
hich fracture the case into many parts and effectively stay the trialB 1iv5

absence of
6ayer%7lient accountability giving the layer monopoly poer to conduct the case the
ay he considers best suited to his on interestB 1v5 little scope for client%client
interaction hich hides potential for alternative dispute resolution and intensifies
conflictual nature of the proceedingsB 1vi5 rotation and transfer of /udges, often meaning
that the same /udge ho heard testimony may not decide the dispute, ta'ing aay thereby
much of his incentive to push forard the proceedings to /udgment and seriously
impeding the process of continuous trial, the ne /udge may have to repeat some of the
procedural re(uirements already fulfilledB 1vii5 inade(uate administrative and logistic
support system, enormous or'load of the /udges, poor salaries and poor or'ing
conditions% all having negative impact on the initiative and efficiency of the /udgesB 1viii5
insufficient internal discipline and accountability"
&o, in our present legal system, increasing e$penses of litigation, delay in disposal of
cases and huge bac'logs have virtually sha'en the confidence of the people in the
/udiciary 13usain, &yed C* Mudassir, C"4 2..95" #n this bac'drop, e cannot but ponder
about the device li'e A)* hich is potentially useful for reducing the bac'logs and
delay in some cases of our courts" #t is also opinion of the A)* promoters that,
alternative dispute resolution, being much cheaper and speedier than the e$isting legal
system, can greatly mitigate the sufferings of poor litigants 13usain, &yed C* Mudassir,
C"4 2..95" Amicable settlement by ay of A)* leads to in%in results for the parties,
rather than lose%in situations in the formal court ad/udication 1Alam, M" &hah4 2..@5"
Another prominent essence for establishing A)* system is the necessity to ma'e a transit
ay into the local dispute resolution system of Adivasi, minor and other marginal peoples
of the country" Adivasi traditions ith its different method of life, different religion,
different language, and different methods of /urisprudence survived for centuries in this
land 1)havan, *a/eev 11,D,5" To e$plore and patroni0e their personal las and cultural
components A)* can play an important role"
Intr"d!cti"n and Devel"&ent "( ADR in Ban#lades%
)espite the fact that the concept of A)* in !angladesh is imposed and developed ith
the intention to stand in same footing ith developed countries as +&A and +K, the
nature of !angladeshi A)* has its on personality and representation differing ith the
Page 3 of Alternative Dispute Resolution: Bangladesh Perspective
foreign one" The foreign A)* is based on commercial disputesB the main goal is to avoid
cost and delay" !ut in !angladesh, there is a significant substance that, the introducing of
A)* in the scope of 6a initiates firstly in family disputes" The important fact is that, in
a vibrant capitali0ed society, the ob/ective of A)* is ho far could be ensured the
business interest of capitalism, but in a third orld country, li'e !angladesh, the goal
initiates ith the aspiration ho far the social harmony can be maintained" &o, the
movement of A)* in such countries is motivated to the reviving and reform of
traditional mediation mechanisms of their homespun cultural roots hich includes not
only of civil but also tiny criminal disputes" ?otable, huge ?2<s in !angladesh are
or'ing in the field of A)* in rural site, to revive the home ingrained dispute resolution
system of !angladesh" The 7onflict Management 2roup for +&A#)>s 7enter for
)emocracy and 2overnance conducted a study on the Alternative )ispute *esolution
1A)*5 in !angladesh" The study shoed, in !angladesh, a broad ?2<%led community
mediation program, supported by the +&A#) and the Asia Eoundation, mediates over
8,... disputes a year" 3oever, e ould discuss no the development of A)* in
!angladesh concisely"
Fith a desire to resolve the degree of problems faced by the courts in !angladesh and the
noticeable inability of the e$isting legal system, an initiative as ta'en in 1,,, by Mr"
Custice Mustafa Kamal to initiate reforms in the legal system of !angladesh 1Mahbub,
&K" 2olam4 2..85" The !angladesh 6egal &tudy group as formed under the leadership
of Custice Mustafa Kamal" The other members of the !6&2 ere Mr" Custice K" M"
3asan 1the then senior most /udge of the 3igh 7ourt )ivision, later the 7hief Custice of
!angladesh5, Mr" Custice Anar%ul%3u( 1then Coint &ecretary, Ministry of 6a, Custice
and :arliamentary Affairs, later elevated as a Cudge, 3igh 7ourt )ivision5, :rofessor )r"
M" &hah Alam 1then a member of the 6a 7ommission,5 and !arrister &hafi( Ahmed
1then president of &upreme 7ourt !ar Association5"
#n its report the !6&2 identified lac' of accountability, absence of discipline and
fragmentation in the litigation process and the absence of resourceful alternatives to full
trial as the most pressing problems" <ne of the recommendations made in the report as
to initiate immediately a pilot pro/ect on mediation, a non%mandatory consensual dispute
resolution system, in the Eamily 7ourts in )ha'a, and then e$pand it to other courts" The
reason for inclusion of the Eamily 7ourts in the :ilot :ro/ect as that it did not involve
any ne legislation" The Eamily 7ourts <rdinance, 1,D8 itself provides for conciliation
hereas inclusion of other courts at that stage needed legislation or amendment of the
7ivil :rocedure 7ode 1,.D 13asan, K"M"42..15" The ordinance deals ith divorce,
restitution of con/ugal rights, doer, maintenance and custody of children" The ordinance
empoers the trial /udge to effect reconciliation beteen the parties both before and after
trial"
#n the :ilot pro/ect, statistics sho that the total reali0ation of money through e$ecution
of decrees in family suites disposed of by trial is far belo the total reali0ation of money
in disputes settled through mediation" Erom 1,D8 to 2... the total money reali0ed in
connection ith Eamily 7ourt cases of the three courts in the pro/ect as about TK"
@2,..,... hereas the total reali0ation through mediation in the same courts from Cune
2... up to 1@
th
May 2..1 as about TK" 81,..,... 13asan, K"M"42..15
Page 4 of Alternative Dispute Resolution: Bangladesh Perspective
The paramount success of the mediation courts is changing the mental attitudes of the
/udges, layers, litigants and general public ho ere doubtful about mediation" The
e$perience in Eamily 7ourts has provided a strong foundation upon hich an
environment to introduce A)* in commercial cases has been established" #n this conte$t,
recently some provisions for mediation have been included for the first time in the 7ode
of 7ivil :rocedure 1,D. and in chapter G of the Artha Rin Adalat Ain 23" The
provision included in the 7:7 is applicable to all suits to be filed or pending in courts
e$cept a suit under the Artha Rin Adalat Ain 23!
?o under sub%section 1 of the section D,A of the 7:7, at any stage after filing a ritten
statement1s5 by the defendant or defendants, if all the contesting parties are in attendance
in the court in person or by their respective pleaders, apply to the court for mediation, the
Cudge has folloing three options4
i5 the court 1the Cudge himself5, by ad/ourning the hearing, may mediate in order
to settle the dispute or disputes in the suit, or
ii5 refer the dispute or disputes in the suit to the engaged pleaders of the partiesB
or to the party or parties here no pleader or pleaders have been engagedB or
iii5 refer to a mediator from the panel prepared by the )istrict Cudge under sub%
section 1. for underta'ing efforts for settlement through mediation"
To facilitate A)* and ma'e it more familiar to the people, there is a proposition by A)*
promoters that, a degree of compulsion might be used, so that, if the 7ourt refers a case
then no appearance of ea'nesses to use A)* ould be involved" !ut a converse
argument is that, mandatory recourse to A)* at the pre%trial stage by /udicial
intervention and thereby any success of A)* could lead to short term fall in layers>
continuing income" Moreover, there are fundamental constitutional issues about the right
of the individual to access of /ustice in the courts" A)* is the system hich has been
evolved from the failure of the adversarial system of la" Any attempt of compulsion
may damage the main echo of the process"
Another remar'able note is that, mere amendments of the 7:7 ithin the e$isting trial
philosophy may not be the best ay to loo' for the gateay in the blind alley 1Alam, M"
&hah4 2...5" !efore it is too late, innovative approaches are needed to live up to the
uphill tas's of reconstructing our /udiciary"
A critical reassess&ent "( ADR c"ncet
#t is very apparent from historical evidence of #ndian subcontinent that, 7ontemporary
#ndia, :a'istan and !angladesh>s legal system is foreign in origin" The establishment of
an outpost in #ndia in 1@1, initiated !ritish rule and gradually control of #ndia by the
1D8.s came through monopoly of overall !ritish trades" ;nglish as made the official
language and several traditional 3indu and Muslim customs ere outlaed"
Anthropologists> opinion is, in every basic community, here society, ith all means of
its on religious, cultural and ahistoric moments, survived ith its organic (uality,
(uantity & differentiaB they ould have a home ingrained system of dispute resolution"
Page " of Alternative Dispute Resolution: Bangladesh Perspective
&uch a basic and dynamic feature of a society can not be altered or remi$ed by any
fusion%based culture"
Eor the reassessment of A)* concept e desire to study the tribulations of our legal
system, hich is gron on basis of *oman utilitarian and totalitarian society, ith this
very sensation" #t is a common gap and intention of modern urbani0ed and centrali0ed
legal system hich is developed under colonial rulers in the than native colonies that, it
has tried to de%culturali0e the native society and abolish it" As numerous scholars
observed in #ndia, =psychological indoctrination> of an elite layer has been identified as
an important aspect of coloni0ation and rule in #ndia" This elite layer as ;nglish%
educated and these !ritish rulers craftily imposed their values and notions to further their
goals of domination and e$ploitation" #n 1D38, Thomas Macaulay articulated the goals of
!ritish colonial imperialism in a fe ords4 =Fe must do our best to form a class ho
may be interpreters beteen us and the millions hom e govern, a class of persons
#ndian in blood and color, but ;nglish in taste, in opinions, ords and intellect>1Ma/id,
Earida4 1,,D5" As the architect of 7olonial !ritainHs ;ducational :olicy in #ndia, Thomas
Macaulay as to set the tone for hat educated #ndians ere going to learn about
themselves, their civili0ation, and their vie of !ritain and the orld around them" At
this point, e can further note that, MacaulayHs :enal 7ode is still the bac'bone of all
civil las of the hole #ndian subcontinent"
&o, the problems hich e are facing are of the load of an oppressive legal system hich
is gron on basis of roman utilitarian and totalitarian society and developed to oppress
the nations under colony and divide them into classes" Moreover, this roman adversarial
system of la created a very high costly interpreter class of la 16ayer5 ho are so far
from the footing of the root level poor class of our society" Man does not get /ustice, but
the chamber of layers and their cost is increasing in the society" The rising interest of
students to study la is not for the sacred sense to ensure /ustice, but it is the interest in
the profession, hich can ma'e money more siftly" 3ere, can be referred to the
comment of a scientific futurologist that, in a society so far the amount of layers ill
increase, the very society ill be so very apt to brea'"
Fe have mentioned before that, the modern A)* movement originated in the +nited
&tates, and basically developed in +&A & +K, hich are the heart of colonial 1virtual
colony, because, in this time to ma'e a colony the god of powers need not to go in the
geography of any country ith army, no they can complete the tas' of the interest by
ma'ing huge discourse li'eise #unda$entalis$% &u$anit'% wo$ans rights% (nfinite
)ustice% nuclear power% *nited +ations% ,orld Ban-% ,ar against .erroris$ etc"5 poer
and authority at this time" Fe further mentioned that, the problems hich e are facing
are of the colonial cenotaph of a multi%colored imperialism and thereby the load of an
oppressive legal system" A notable fact is that, the societies of est are highly
differentiated in nature, hich is (uite dissimilar ith our integrated social relations in
Asia" ?o e have found the A)* movement of this category as a counter part of that
legal system and also e have recited before the claim against A)* concept that it is
designed basically for business interest and the affluent class hich could narro the
access of minorities and the poor to the formal /udicial system" &o, it is comprehensible
that, /urisprudential politics of present A)* system is to revive and patroni0e corporation
structure of 7apitalism"
Page / of Alternative Dispute Resolution: Bangladesh Perspective
The fact is deeming to be as li'e to remove the conflicts of a defeated tradition ith
establishing another such defeated tradition" Fe thin' that the problem is in our inherited
legal tradition from !ritish, so the solution is not possible by folloing the estern
method of resolution, either it is alternative or state based traditional /ustice system" The
e(uilibrium is an aftermath of this algebra4
0 1 ' 2 a3
Fhere 0 2 our indigenous culture of dispute resolution, and ' 2 !ritish colonial
oppressive legal system, hich e have inherited" &o, a3 2 the fusion of both, here
huge problems arising, a bad combination"
&o, e have to find out a most effective ay to resolution of disputes" This paper
proposes that e should re%discover at first our indigenous cultural components for it" Fe
can find the e(uilibrium point of this algebra as in, 0 2 a34'! The core substance is, e
should e$clude all other dissimilar components of this fusion and search for further
creativity"
Ben#al)s "r#anic c!lt!re "( dis!te res"l!ti"n
At the early time of ancient ?orthern #ndia and elsehere in the subcontinent, including
!engal, an aboriginal dispute resolution system of the land Pancha'et as the loest tier
of local government" The nature of this system as highly informal, pursued by the
practical situation established at the grassroots level 13u(, Ea0lul4 1,,D, &iddi(ui, Kamal4
1,,D, Alam, M" &hah4 2..@5"
#t also functioned somehat as a court having /urisdiction over members of different
castes and occupations belonging to the same village and tonship" The initial
development of the pachanyets as a spontaneous phenomenon to meet the social needs,
and they ere (uite independent in their or'ing" Though the 'ings, or the rulers named
otherise, are reported to have some role in helping these panchayets to get organi0ed at
the formative stage, the former seldom interfered ith their or'ing" The panchayet had
/urisdiction over almost every type of dispute arising in the village community" They
decided both civil and criminal cases and their poers ere not ordinarily bound ithin
any financial limit" Erom the 13th to the 1Dth century A")" the !uddhists, 3indus and
later Muslims ruled !engal" #n that time, the history of development of political
philosophy and legal thoughts is influenced and often represented and characteri0ed by
the role of the dominant rulers in !engal" !ut after the victory of !ritish ;ast #ndia
7ompany in this sub%continent, they dominantly stood ith complete colonial character
and sharply divided 3indus and Muslims to rule the sub%continent and used religious
sentiment against each other 1Cahid, )elar4 2..9, see also .he (ndian 5usal$ans4
F"F" 3unter5" !ritish rule in this sub%continent as founded on na'ed poer, and #ndia
continued to be ruled by the sord by !ritish rulers" At this instant, during the period of
!ritish rule in #ndia, the /urisdiction and authority of panchayets suffered decline ith the
establishment of formal courts of adversary character for ad/udicating civil and criminal
cases" The ne land system introduced by the !ritish also harmfully affected the
panchayet /ustice system" At this time some peoples fought for the preservation of the
indigenous customs and institutionsB in the belief that these ere most appropriate for
#ndians at their stage of development, and that any attempt to tamper ith indigenous
Page 6 of Alternative Dispute Resolution: Bangladesh Perspective
customs and beliefs ould be received ith hostility 1see .itu$ir and his followers4
Ahmed, Muin%+d%)in, Khan5"
#n early time of !engal and elsehere in the subcontinent, 2ram :anchayet functioned to
resolve or to mediate disputes in the village among the members of the different
religions, casts and occupations" The local mediation during the early !ritish period in
this part of the subcontinent seems to have comprised ad/udication of 1i5 petty disputes
relating to social matters mostly through neighborhood &halishB and 1ii5 land related and
inter%neighborhood or inter%village disputes through the 0aminder or his agents 1&iddi(ui,
Kamal4 1,,D5" 6ater, as population increased and neighborhoods e$panded from villages,
there as both neighborhood and village%based ad/udication" Fhatever e$isted here as
highly informal in nature, dictated by the practical situation prevailing at the grassroots
level of the land"
S%alis%: a r"&isin# *a' *it%in r!ral Ban#lades%
!engal has preserved a historical social solidarity over the century" #t has its on
religious, cultural and ahistoric moments, hich maintained an organic (uality, (uantity
and differentia" &o, the adversarial /ustice system in !angladesh, hich as inherited
from the !ritish legal system, could not bring significant changes to community level la
and order situation in !angladesh society" #t is the mindset of the villagers in !angladesh
that, they naturally disli'e any 'inds of filing suits to court% either civil or criminal" A
villager, ho habitually ma'es suits against another villager, is called $a$la3a7, a bad
comment for habituating ith courts" They alays desire to settle any dispute ithin
village community &halish out of court"
2enerally the ord &halish means mediation in !angladesh society 13u(, Ea0lul4 1,,D5"
The estern mediation is a'in to &halish in conception but differs in concept and
application from the latter" &halish is informal ad/udication of petty disputes 1both civil
and criminal in nature, but particularly related to family las5 locally
1neighbourhoodIvillage based5 by a group of notables i!e! matbars or shalish'ars
1&iddi(ui, Kamal4 1,,D5" The concept of shalish refers to a method of dispute resolution,
and is considered to be a customary practice of resolving differences among community
members"
#n order to resolve disputes beteen the contending parties, an impartial third party
mediates &halish" The concept has significant civil and legal importance as it helps to
restore community harmony formally and informally" &ince &halish vivifies the dynamics
of rural poer structure of !angladesh, it has enormous theoretical implications" Eirst, it
stabili0es socio%political livelihood and class%conflict in small community conte$t" Fhen
social conflicts, disintegration, violence and terrorism, and chaos erupt in communityB
&halish appears to supplement and substitute immediate legal needs of the community"
&econd, &halish is a strong means to establish community solidarity, social bondage and
reciprocal coe$istence" As ell, &halish is a traditional democratic mode of conflict
resolution"
To types of ad/udication have been in place in rural !angladesh from days of anti(uity,
these ere &halish and e$tension of the state>s /udicial arm into the rural areas through
specific legislation" ?ormally, the process of a particular &halish starts ith interrogating
Page 8 of Alternative Dispute Resolution: Bangladesh Perspective
the disputants to ascertain the facts" Then the &halish'ars offer their solutions, and see'
the opinions of disputants beforeB finally, they come to a decision 1;llic'son4 1,-25"
#n the last fe decades ?2<s and para legal organi0ations in !angladesh have ta'en up
the case of reviving and re/uvenating the age%old institution of mediation and arbitration
i!e! &halish in its true spirit to serve the purpose of amicable settlement of dispute in order
to spare the people of the ha0ards of going to the courts 1Alam, M" &hah4 2..@5" Ain <
&halish Kendra 1A&K5, !angladesh 6egal Aid and &ervices Trust 1!6A&T5 and
Madaripur 6egal Aid Association 1M6AA5 are three pioneered ?2< program or'ing
on &halish in !angladesh"
&o, the impact of &halish as a social order in our society is very important" The
establishing of a solid foundation for &halish as a social order ould be helpful to the
vast ma/ority of rural people" #t ould eliminate e$ploitation and secure e(ual
opportunities for /ustice"
A #iven criticis& and reassess&ent "( t%e c"nde&nati"n
There is a given criticism that, presently &halish in !angladesh is entangled in a vicious
circle of complications" Ea0lul 3u( 11,,D5 referred to studies on +nion :arishad%led rural
informal &halish as a means of idespread corruption of its administrators" <rthodo$
religious vies, money, nepotism, political domination and social status of upper%class
people often influence the verdict of most &halish operations" Tania Amir 12..25 claims,
=almost alays persecution and fatas have been given against omen, sub/ecting them
to inhuman, cruel, and degrading treatment in the name of #slam by ay of a =&halish>"
=The traditional &halish is therefore not only =anti%omen> but also =anti%development>" #t
has been used as a systematic tool of violence and repression against omen and
development by Eataba/>"
#n a birds eye vie, these criticisms of traditional &halish system in rural !angladesh are
seemed to be true and common" !ut a reassessment of those criticisms from hori0ontal
scrutiny is necessary no" There are basically three concepts given by ma$imum critics"
Eirst is #atwa 1declaration of punishment according to #slamic shari>a5, second is +ari
nigraha 1anti oman, oppressed oman5, and third is *nna'an 1development5" These are
very crucial issues of today !angladesh, as ell as the hole orld" !ut there are some
other statements li'ely to ma'e strong disagreement ith those criticisms" *eferring to
the concept of Eata and oppressed oman, &nigdha Ali 12..85, a researcher in the field
of )evelopmental &ociology from +&A rites after a research criteria on Eata, &halish
and third orld feminism in !angladesh perspective thatB =# am in no position to critici0e
the circumstances of &halish from the outside" This is hat # learnt from Third Forld
feminism % not to analy0e the incident out of its conte$t>" A crucial fact is that, even
though the villagers felt that sometimes the punishment folloing a Eata as too harsh
for omen they still supported the system of Eata as it as a functional mean of social
control" ;ven if those same omen had the generosity at heart to accept the adultery
committed by a oman and at the same time ere an$ious that if there as no social
control hat ould their children learn" !eing deeply involved ith those confrontations
&nigdha Ali says, =ho as # to thin' # as more enlightened than they ereJ Fhen #
as very clearly told by village omen that hat omen did in )ha'a or on TG as not
acceptable to them, ho as # to censureJ # can only share my vies ith them, # cannot
Page 9 of Alternative Dispute Resolution: Bangladesh Perspective
impose on them" # can understand their positions in their conte$t, # cannot label them
=oppressed> aiting to be rescued" # can present alternatives, # cannot force them>" &o,
if any 'ind of social change has to be made e have to or' both at the macro and the
micro level" A change can not be addressed separately from politics or isolated from
other interconnected factors li'e culture and religion"
The accusations found condemning traditional &halish ith =Eata>, =Anti%oman>, and
=Anti%development> are based on the analysis of ?2<s, and there is an allegation that,
rather than EataB the main fact is =development> hich creates a poer and entrance for
them in rural level of !angladesh" Fe have got the idea of Eata and oppressed oman
from &nigdha Ali, and to reali0e another ord =development> e can study Brigitte
:rler% ho has or'ed as consultant of economic ministry of 2ermany from 1,-9 to
1,D3, and during this time, made a government tour in !angladesh to loo' after the
developmental or's of the 2erman government in rural !angladesh" #n present orld,
e see, poerful part of orld gives huge discourse against marginal others to create
virtual colonies 1Michel Eoucault4 1,@@5" According to !rigitte ;rler, =)evelopment> is
such a discourse to abolish the marginal orlds" Eoucault gives us the concept of poer,
'noledge and politics of these discourses" According to him, e should study all
estern discourses ith the very meaning of its politics and poer" &o, the assumptions
of Eata, ?ari nigraha and +nnayan are (uestionable from its unclean political approach"
&o, e can only share our vies ith rural !angladesh, but cannot impose" Fe should
understand their positions in their conte$t, but cannot label them =oppressed> aiting to
be rescued 1Ali, &nigdha4 2..85" After all, e can present alternatives, not by generating
discourses, but ith creative infinity"
Be#innin# "( an end
The ord )usticeB Muin%ud%)in Ahmed Khan e$plains the meaning of it to give
ever'3od' his due, although the present practice of the ord is to give ever' 3od' his
right% according to law" There is a far difference beteen the concept of due and right"
Fherever any rong is given immunity by la, to do the very rong seems to be the
right of every citi0en of such country" #n the other hand, a natural due of man may be
banned by la" This is a comple$ (uestion in present concept of la in our civili0ation"
According to Khan, as a rule nobody ants in/ustice for himself or herself though all are
not generous enough to e$tend /ustice e(ually to others" #n a ord, in the ordinary
transaction of human beings /ustice is everybody>s e$pectation though may not be
everyoneHs generosity"
3e saysB all problems in human life arise out of the gap beteen the give and ta'e of
/ustice" !ecause human nature is generally tendentious and a'in to in/ustice and
selfishness" <nly by dint of moral restraint, self%discipline and patience, a man or oman
attains to a righteous state of giving /ustice to others as he or she e$pects it for his or her
on self" *ather, by the e$pansion of estern capitalism, afterard imperialism,
colonialism and ne colonialism divided the man of hole orld in to classes ith a
stri'ing contest to each other4 e$hauster and e$hausted class and thereby, affluent and
poor class" #n the contrary of estern capitalism, estern communism is also failed to
amend this division" As a result, the class conflict and contradiction in society is shaping
Page 1 of Alternative Dispute Resolution: Bangladesh Perspective
to diverse and polymorphic forms day after day" 1Ahmed, Muin%ud%)in, Khan41,D8 &
2..@5
&o, the (uestion is to fill the gap of the society by ensuring e(ual /ustice ith its true
meaning" #n the above study of our adversarial legal system, ma$imum critics> opinion is
that, it has been failed to redress our legal need from metropolis to rural level
!angladesh" The most foundation of the A)* concept starts from this very sensation" All
scholars pronounced the ord =reformation> of the /udicial system firstly in introducing
their dialogue" #t is very sensitive to tal' ith legal system and security system of any
state, because it is deemed culturally as to dra toards the cloths of the government"
!ut to maintain the society in an animated flo e should discuss this topic ith more
fluent creativity" Fe sa that, in every given structure have its on components" #n rural
!angladesh, the residence of one religious community is separated from other religious
community" !ut in urban community there is maintained a multicultural pluralistic
approach of residence in society" This is hy the villagers of !angladesh led by a
religious tradition of &halish, but in urban community it practiced ith pluralistic mode"
!ut it is true that, there is a 'non tradition of community &halish in rural !angladesh as
ell as urban society"
A change and reformation is the solicited ish of our legal system in this time" !ut it
cannot be changed ith a plan of short time" There is some basic (uestions arise at the
introducing period" That is, i5 either a civil disobedience ould be considered as legal or
political problemB ii5 A resolution of disputes of civil or criminal character ould be
settled either by rigid methodological approach or by creativity on e$perienceB iii5 ;ither
la ould be developed on the basis of hat should be ones> due or on the basis of
traditional dogma by codificationB iv5 ;ither la ould pursue the cultural components of
the land or notB v5 Fould the philosophy of punishment for a crime be based on ob/ective
of revision of the offender or on the goal of retributionB our legal system should face such
a variety of (uestions in its ay for change and reformation"
To ma'e a sudden change in a /udicial system may create hapha0ard situation in the
hole country" As the preparation and homeor' of a basic change in /udicial system
A)* can play a fruitful role in this regard" #t can also minimi0e the disorder hich may
create at the time of changing the /udicial system" At this conte$tB e may proceed ith
some preliminary tas's as follos4
1" Fe can create some legal arbitration cell in different places" &uch as, a
metropolitan city can be divided into different arbitration cells considering the
common characteristics of those places"
2" ;very legal arbitration cell ill consist of a /urist body, here ill be laid don
all the civil disputes or a particular class of civil or (uasi criminal disputes
primarily"
3" The decisions of every such legal arbitration cell ill be considered as precedent
for a further time in deciding and settling the disputes"
9" Eor this regards, there may publish a /ournal in every ee' or month consisting of
every such cells decisions and critical discussion over those decisions"
8" There may be some /urisprudential principle for resolution of the disputes, such
asB the ob/ective of every such resolution ould run to settle the disputes, not to
Page 11 of Alternative Dispute Resolution: Bangladesh Perspective
ma'e confrontation beteen the parties to the disputeB and thereby it ill ma'e a
position of a in%in result to the parties to the dispute"
@" There ill get priority the cultural and customary components of the very area in
ma'ing a decision"
-" Fith an e$perience of a reasonable period, the plan of legal arbitration cell may
be e$tended to the rural area, as a richest figure of grameen &halish"
This entire criterion ill be considered as homeor' of a ma/or change in legal system,
from hich e can ascertain an appropriate mode for our legal system" This ill specify
the /urisprudential philosophy of the country, on the basis of hich the la ill play its
role" Fe can develop then step by step our on legal system hich ill not be foreign in
nature, because it ill be an output of a regional homeor' and e$perience, thereby
nearest to the personality and culture of the society"
;ast developed on 8 5a'% 2/
Page 12 of Alternative Dispute Resolution: Bangladesh Perspective
R e ( e r e n c e s4
&iddi(ui, Kamal 11,,D54 =#n Kuest of Custice at the 2rass *oots>, Cournal of Asiatic
&ociety of !angladesh, 3umanities, Gol" 93, no"1, )ha'a"
3u(, Ea0lul 11,,D54 =Toards to a 6ocal Custice &ystem for the :oor>, 2rameen poverty
research, vol" 9, ?o" 1, )ha'a"
Alam, M &hah 12...54 =Alternative )ispute resolution by early Cudicial #ntervention4 A
:ossible Fay out of delay and !ac'log in our Cudiciary>, )aily &tar, )ha'a, April 1@" #n
this paper he dictates the violent position of legal system in !angladesh as caused by
huge bac'logs of cases, /udicial corruption and adversarial nature of legal system"
Ahmed, Muin%ud%)in, Khan 11,D854 =Custice4 a :hilological Analysis>, :ublished in
!angladesh )arshan :atri'a, 1st part, ?ovember, 1,D8, pp" 99%98" 6ast developed edition
of the paper is =)ispensation of /ustice in the east and the est4 a simple 7omparison>B
published on =the &ouvenir of 6a 7lub>, ;dited by Mohammed Yasin, May 2..@,
7hittagong" #n this paper professor 'han initiates the philological consideration of )ustice
in a very historical and constructive ay" #t also reflects the nature and scope of concepts
i"e" due and right ith a criticism of pra$is"
#slam, Earmanul 12...54 =Toards a brief history of alternative dispute resolution in rural
!angladesh>, !angladesh Cournal of 6a, Gol" 9, ?os" 1&2, Cune & )ecember 2...,
)ha'a"
Eoucault, Michel 11,@@54 The <rder of Things, one of his most influential studies of
intellectual history" Eoucault>s or' is concerned ith the historical e$pressions of poer
in civili0ations and ho poer is related to 'noledge and the individual" #n all his
philosophical in(uiries, Eoucault ill attempt to challenge established values by shoing
ho basic assumptions of 'noledge are tied to systems of social control"
;rler, !rigitte 11,,854 &haha/ya ?a MaronastraJ 1Aid or Feapon of destructionJ5,
:ublished by the +niversity :ress 6imited, )ha'a" Brigitte :rler has or'ed as
consultant of economic ministry of 2ermany from 1,-9 to 1,D3, and during this time,
made a government tour in !angladesh to loo' after the developmental or's of the
2erman government in rural !angladesh" #n this very boo' she has shoed that, every
developmental plan of 2erman government in rural !angladesh ea'ened the economy
of !angladesh more promptly"
*ivero, <sldo, )e 12..154 The Myth of )evelopment 1the non%viable economics of the
21
st
century5, :ublished by the +niversity press limited, )ha'a"
+re, ?evile, :erely 11,8154 Custiniun and his age, :elican" *eference from Ahmed, Muin%
+d%)in, Khan 11,D85
;ngels, Eriedrich 11DD954 <rigin of the Eamily, :rivate :roperty and the &tate 1trans"
1,.25
3o(ue, Ka0i ;mdadul, C" 11,,D54 !ichar !abasthar !ibartan, :ublished by !angla
Academy, Canuary, )ha'a"
Karim, Abdul 11,D854 &ocial 3istory of the Muslims in !engal 1don to A")" 183D5,
!aitush &haraf #slamic *esearch #nstitute, 7hittagong"
Page 13 of Alternative Dispute Resolution: Bangladesh Perspective
7hodhury, 3asanu00aman 12..854 &oma/ < +nnayan4 Tulanamula' &angbi''hanB
revised edition, Ta/ Traders 1pvt5 6imited, 7hittagong"
2enn, 3a0el 11,,,54 Mediation in Action4 resolving 7ourt )isputes ithout Trial,
7alouste 2ulben'ian Eoundation, 6ondon" *eference from Mahbub, &K" 2olam 12..85"
)havan, *a/eev 11,D,54 6a and &ociety in Modern #ndia, <$ford +niversity :ress,
)elhi"
Kamal, Mustafa, C" 12..254 =#ntroducing A)* in !angladesh> paper read in the national
or'shop on =Alternative dispute resolution4 #n (uest of a ne dimension in civil Custice
)elivery system in !angladesh>, organi0ed by the ministry of 6a, Custice &
:arliamentary Affairs, 31 <ctober"
3usain, &yed C* Mudassir, C" 12..954 speech given in the concluding session of &outh
Asian *egional or'shop on A)* organi0ed by the !ritish 7ouncil, !angladesh on -
th
and D
th
March"
3asan, K"M" C" 12..154 =A report on Mediation in the Eamily 7ourts4 !angladesh
e$perience>, presented in the 28
th
Anniversary 7onference of the Eamily 7ourts of
Australia, &ydney, 2@%2, Culy"
Mahbub, &K" 2olam 12..854 Alternative )ispute resolution 1A)*5 in 7ommercial
)isputes4 The +K & !angladesh :erspectives, published by &K" 2olam Mahbub, )ha'a
Tania, Amir 12..254 =Giolence against Fomen and 7hildren as Tools of &ystematic
:olitical :ersecution>, ?ational 7onvention on 7rime against 3umanity, ;ngineers>
#nstitution, )ha'a, held on 19%18 Eebruary"
+ddin, ?asir 12..154 #nformal Cudicial practice in rural !angladesh4 A fe case studies
of &alish, The 7hittagong +niversity Cournal of 6a, Gol" G#, +niversity of 7hittagong"
Cahid, )elar 12..954 <halish45ediation in Rural Bangladesh, *esearch Eello, &t"
:aul>s 7ollege, +niversity of Manitoba, 7anada"
Ali, &nigdha 12..854 Do ,e +eed a .hird ,orld #e$inis$= &he does research in the
field of )evelopmental &ociology, Atlanta, +&A"
7onflict Management 2roup of +&A#) 12...54 Alternative )ispute *esolution
For'shop, ?F Fashington, )7" *eference from Cahid, )elar 12..95"
Page 14 of Alternative Dispute Resolution: Bangladesh Perspective