A.D.R: The appropriate Civil Justice System in Bangladesh.
The first and foremost function of the judiciary is to settle disputes between parties. People repose faith in the judiciary for effective adequate and complete justice, justice through due process may be too lengthy and expensive. Scrutinizes it may so happen that the subjects of a case are parties of different states e.g.’ in case of international commercial disputes, it becomes cumbersome to determine the right forum as regards the initiation of the case. It is also time consuming. Time is money in international commercial transaction So, jurists in an attempt to try out some alternative means have coined the term ‘alternative dispute resolution’ which is indeed a groundbreaking mode in resolving disputes.
ADR is an old term The main aim of ADR system in Bangladesh is to develop the belevolence between disputing parties and restoration of harmony through mediation, conciliation and arbitration etc. rooted in the history, “together it is long Judaism, Christianity, and Islam played significant roles to dissolve dispute ; their followers.
People of different groups like Bushmen of the Kalahari,387 Hawaiian slanders of Polynesian”, Kpelle of Central Liberia, Abkliazian of the Caucasus Mountains of Georgia of former Soviet Union, Yoruba of Nigeria used their tradition struments to dissolve similarities with modern ADR. ADR was practiced in ancient China and Greece. In Indian sub-continent, there was a system of pancbqyat, where arbitrator, called a Panel) decided any issue in dispute and’Ke^was’respected in such a way that nobody even tried to disobey his decision.
1.2 Object of ADR:
- The primary object of ADR movement is avoidance of vexation.
- Expense and delay and promotion of the ideal of ‘access to justice’ for all.
- In other words, the ADR system seeks to provide cheap, simple, quick and accessible justice.
- Courts of most of the countries are suffering from huge caseloads.
- ADR system can be instrumental to settle disputes between.
The approach adopted to achieve the specific objectives of the present study has involved the use of different research methodologies in a series of discrete research undertakings. Initially, through exploratory investigation, a number of topics and general questions concerning the specific objective of the study have been identified and defined for systematic and comprehensive research. Thereafter, these topics and questions have been addressed by taking recourse to both primary and secondary data.
To explore the total features of ADR justice system is being analyzed in this paper on the basis of secondary data.
So far secondary data are concerned, a literature review of relevant studies, reports and other publications has been undertaken and the information and findings contained therein have been described, analyzed and evaluated.
Characteristics of ADR:
Though different form; of ADR have different characteristics’ but there are some common features o: ADR., which are described below:
Informality is the most fundamental characteristic of ADR. Like oroinarv Court of law, in ADR there are absence of many formalities. For example, in courts of law many formalities like court fee, suit valuation, stamp, appointment of lawyers, framing issues or charge, fixation of date of hearing etc. are to be followed. Most of these issues are followed in ADR also but in an informal manner.-
Application of Equity:
The place of equity in very important and equity came to suonleniend K/”the Common La*, not to tubiaite it. Equity which is basicallv b.tsed on , natural justice has no place where express provisions are laid down in the statute. 3m So, the ordinary Court of law has nothing to do on the basis of equity where there is express provision of law. But in ADR there is always scope to apply equity.
Direct Participation and Communication between Parties:
Another most important and common feature of ADR is the direct participation and communication between parties. ADR facilitates direct dialogue and opportunity for reconciliation between parties.
Advantages of ADR:
Because of some proven advantages ADR is practiced all over the world -and the importance of ADR is increasingly felt. ADR can be effectively successful in some cases where ordinary Court of law cannot even take a decision. The advantages of ADR are discussed below- —
Any dispute settled by any form of ADR ends with harmony. Both the parties remain happy in such resolution. There exists a win-win situation in ADR, which is opposed to ‘win-loss’ situation in ordinary litigation.
Less informal procedures are followed in ADR and for people like those of Bangladesh where most of them are(illiterate and do not understand formal procedure of the Court of law this informal procedure of ADR will operate to their advantage.
Speedy Disposal of Disputes:
ADR saves time of the parties to the dispute. Since ADR follows informal procedure the parties to the dispute can get their remedy earlier. In a court of law the court has to follow many formalities.
Moving ordinary Court of law involve huge amount of money. Initially,(the Court fee is to be paid to start a suit. Then there is fee of the lawyer to defend the case/then to collect the certified copies of the judgment or order or decree, the parties to the suit have to count enough money. Since ADR follows informal procedure. ADR saves money.
Access to Justice:
Constitutions of most of the countries provide for the people’s right to justice. This is also evident in the international and regional instruments of human rights. But in effect this may not always be the case. ADR significantly creates access to justice for such disadvantaged group who would not get justice in ordinary court of law.
Assistance to Ordinary Legal System:
All over the world, the Courts of law are facing terrible problems due to unlimited number of cases. Day by day the states are trying to provide the citizens different rights and thus invite people to move to the Court even for trifle offences. Since ADR is an alternative step to help the ordinary Courts of law to dissolve disputes, it supports and complements Court reform.
A free and democratic society requires respect for the autonomy of individuals, and limits on the power of both state and private organizations to intrude on that autonomy . . . Privacy is a key value which underpins human dignity. Privacy is a basic human right and the reasonable expectation of every person.
In ADR since only the parties and their representatives remain present, strict privacy is tried to maintain under all circumstances.
ADR can award effective remedy in comparison with the remedy provided by the ordinary of the land. Chief justice K. M. Hassan thus observed:
The Greatest achievement of the mediation Courts is changing of mental attitudes of the judges, lawyers, litigants and general public who were skeptical about mediation. Initially, there were feelings of opposition and suspicion by some in the legal profession for this entirely differently based discipline but it is changing. Those who used to come to the Court with a confrontational mood are accepting the idea of mediation and more are coming prepared to settle dispute through mediation. It is interesting to note that the same lawyers who fight tooth and nail to win a suit in trial also try hard to find out solution through mediation.391
2.1 Limitations of ADR:
Nothing in this world is above limitation or criticism. Likewise, there are some nominal limitations of ADR.
The main limitation of ADR is that it cannot define, refine, establish, and promote a legal framework.
Abuse of Human Rights:
Peoples who do not like ADR, want to establish that it redress as pervasive injustice discrimination, or human rights problems. They may argue that, in a ease, where parties are representing different groups i.e. one is rich and one is poor, there is always a chance that the judges in ADR will favour the rich part – rather the poor. Thus, there is a chance of human rights abuse.
2.2 Non-establishment of True Justice:
ADR resolve disputes between parties who possess greatly different levels of power or authority. Say for example, there is provision under the Industrial Relations Ordinance, 1969 to dissolve dispute by adopting ADR. Advocates against ADR contend that in such cases the labour who is a victim of industrial dispute could get more advantage if he could go to the Court of law because his employer is so powerful that he cannot even dare to deny the proposals of the employer.
2.3 Non-binding Effect:
In most of the cases, even after the settlement outside the Court i.e. through ADR, a party can go to the Court with the same cause of action or with appeal.
2.4 Two Categories of ADR:
Basically, there are two categories of ADR that are practiced in the world today. They are (a) Court-annexed ADR, and (b) community-based ADR.
2.5 Court-annexed ADR:
In this classic method a neutral third party helps the parties to a dispute in reaching a mutually acceptable solution. This method decreases the cost and times of parties, improves access to justice and reduces Court’s caseloads, and simultaneously preserves important social relationships of parties. For example, Conciliation, Settlement Conference, Judge-Hosted Settlement Conference etc. are court-annexed ADR.
2.6 Community-based ADR:
As the tide gives impression, the Community-based ADR is practiced at community level, where elders, religious “leaders, or other community figures help parties to resolve conflict. In this Indo-Pak Subcontinent, the terms ‘punchy for ‘salisf are not new. For example, negotiation is a community-based ADR.
2.7 Different Forms of ADR:
Different types of ADR can be classified under two broad headings, i.e. (a) primary or basic ADR models and (b) hybrid ADR models.
2.9 Primary or Basic ADR Models:
The basic models of ADR are those models which are very common to use and includes negotiation, conciliation, arbitration and mediation. They are discussed below-
Chapter – Three
Negotiation is the most common form of dispute resolution. The Dictionary me.ir.iiig ot the term is discussion aimed at reaching an agreement, It is the process by which the parties voluntarily seek a mutually acceptable agreement to resolve their common dispute without taking help from the third part}- or from the Court. Ih this process the parties to the dispute control the whole process and find out the solution. Section 26 of 1 the Industrial Relations Ordinance, 1969 (Ordinance No. XXIII of 1969) deals with negotiation relating to industrial disputes.
Conciliation is another common form of dispute resolution. In this process a third party meet? Separately with the disputants in an effort to establish mutual understanding of the underlying causes of the dispute and thereby promote pacific settlement. Sections 27, 27A, 29 and 30 of the Industrial Relations Ordinance, 1969 (Ordinance No. XXIII of 1969) deal with conciliation.
Mediation is voluntary and informal process in which the disputing parties select a neutral third party (one or more individuals) to assist them in reaching a mutuallr-acceptable settlement. In another words, it is a process to try to get agreement between two or more people or groups who • disagree with each other.
Section 89A of the Code of Civil Procedure, 1908 (V of 1908) provides that “Mediation” shall mean flexible, informal, non-binding, confidential, non-adversarial and consensual dispute resolution process in which the mediator shall facilitate compromise of disputes in the suit between the parties without directing or dictating the terms of such compromise.
Now-a-days it is the most grooming process applied all over the world. Unlike a judge or arbitrator, the mediator has no power to impose a solution on the disputants; instead, the mediator assists them in shaping solutions to meet their interests. The mediator’s role and the mediation process may van’ significantly, depending on the type of dispute and mediator’s approach. Mediators can employ a wide-range of techniques, e.g., assist parties to communicate effectively and to develop a cooperative, problem-solving attitude; identify parries’ underlying interests; identify and narrow issues; transmit messages between parties; explore possible options for agreement and the consequences of non-settlement.
Arbitration is an adjudicatory dispute resolution process in which one or more arbitrators issues a judgment on the merits (which may be binding or non-binding) after an expedited, adversarial hearing, in which each part}’ has the opportunity to present proofs and arguments. Arbitration is an alternative form of resolution of disputes between parties and, as such, the Arbitrator must have power to decide all the differences and disputes between them.
Arbitration is the process of having a dispute settled by a person or group non-involved in the dispute. Arbitration is procedurally less formal than Court adjudication; procedural rules and substantive law may be set by the parties. Arbitration commences when one party gives notice to another for appointment of arbitrator.
Section 31 of the Industrial Relations Ordinance, 1969 (Ordinance No. XXIII of 1969) deals with Arbitration. Before 2001, in Bangladesh, there were two Acts i.e. the Arbitration (Protocol and Convention) Act, 1937 and the Arbitration Act, 1940 by which the whole affairs of Arbitration were regulated. In 2001, a new Act i.e. the SalishAin, 2001 (Act No. 1 of 2001) was enacted and section 59 of this Act repealed the Arbitration (Protocol and Convention) Act, 1937 and the Arbitration Act, 1940.
It is pertinent to mention here that the Arbitrator does not exercise a judicial function in course of inquiry or investigation as to the amount of compensation and as such is not a Court although he is expected to act within judicial norms.
Arbitrator being not a Court under the Code of Civil Procedure is not subordinate to the 1 fiifh Court Division and as such no “contempt proceedings call be dra\vr. :;j>in?t the opposite parties.
The award of arbitration sha_i be filed in the Court for making rule of the Court. Objection against avsrd if any, shall have to be filed within 30 days of the filing of the award in Court as prescribed by article 15S of the Limitation Act, which is mandatory and is well settled.
When an Award is made decree of the Court in partition suit, it is simply a preliminary decree. Unless made final, delivery of possession of the land cannot be given in pursuance of the preliminary decree.
When the other side does not cooperate to appoint its arbitrator despite service of notice the sole arbitrator can proceed and alone make the award. Unless an arbitral award is void ab initio or is illegal apparent on the face of it, Court is bound to make the same rule of the Court and dm\v a decree accordingly. The Court making the award, rule of the Court is not a Court of appeal and as such it cannot sit over the award as an appellate authority as provided under section 33 of the Arbitration Act, 1940.
Misconduct on the part o: arbitrators may be a ground for setting aside their award. But such misconduct when not agitated in the tnal Court, cannot be raised afresh before the superior Courts.
An arbitrator does not adjudicate and he does not sit as a Tribunal. He is not bound by the technicalities of the Evidence Act. His function is like that of conciliator. He is neither a Court nor a Tribunal and his award is not a judgment, decree or order of any Court or. Tribunal within the meaning of article 3 of the Bangladesh Legal Proceedings) Order, 1972 (P.O. Xo. 12 of 1972).
All over the world, in commercial disputes, arbitration is encouraged. All the characteristics of primary or basic models of ADR i.e. negotiation, conciliation, mediation and arbitration can be projected in the following table-
“Primary” Dispute Resolution Processes
3.5 Hybrid ADR Models:
Beside these above-mentioned basic ADR models, there are some hybrid models of ADR practiced around the world. As name denotes, these hybrid models ADR are the combination of two or more basic models of ADR. Some, hybrid models of ADR are discussed below-
3.6 Appellate ADR:
Appellate ADR is a very special type of ADR, which is used in the Federal and States Courts in USA. If a case moves to the Appellate Courts then before starting the case the Court-engaged staff attorneys or outside lawyers compulsorily try to settle the case. In Bangladesh under section 89C of the Code of Civil Procedure, 1908 (V of 1908) , there is a scope of appellate ADR.
3.7 Early Neutral Evaluation (ENE):
In this model, a neutral professional who has legal or other expertise hears a summary of each party’s case and gives a possible decision with an intention and hope that the parties will not move to the Court of law/”4 This model was developed in the mid 1980s in the federal Court of San Francisco of USA.
This model of ADR is very common in International law of Treat where an independent neutral third party)’ tries to find out the true facts behind a dispute and suggests a binding decision. Representatives from both the parties either being appointed by the Court or not may help him. For example, Article 90 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977 deals with International Fact Finding Commission.
3.9 Judge-Hosted Settlement Conference:
This is a Court-annexed ADR process \vhere the judge who is going to decide the case, takes an initiative to help parties to the suit to reach a decision. This is the most practiced ADR in USA federal and state Court and in Japan. In Bangladesh also, the Family Court judges Erst try to settle the dispute through ADR. Same provisions can be found in relation to the Arlba Kin Adaldt.
3.10 Med-Arb., or Mediation-Arbitration:
This is an interesting model of ADR where the parties to the dispute agree that they will be abide by the decision derived from Mediation and if something left undecided that will be setded through Arbitration. But in this model same peoples act as Mediator and Arbitrator.
The Mini-trial is nothing but the modern shape of the traditionally practiced ‘panchqyaf system in this Subcontinent. A panel of high-level people from both the parties in dispute, with complete settlement authority, hears the issues in dispute. In this process, both the parties after presenting his case can hear the strengths and \weakness of his case from die panel and the panel then announces its decisions.
3.12 Court-based Mini-trial:
The special feature of this process of ADR comparing to the abovementioned mini-trial is that in this process the Magistrate or the Judge act as Panel and gives his decisions. If negotiation fails then the parties can proceed for die trial.
Negotiated Rule-making, Regulatory Negotiation or “Reg-Neg”:
This process is totally of new origin and popular in the developed countries. In this process if the Government wants to make any rule or amendment in the existing legislation, then after drafting the provision publishes it in the media and asks citizens and stakeholders to make comment within a prescribed period of time. If they make such comment, the Government thus changes its proposed Draft. This system can help to avoid subsequent litigation over the resulting rule.
The appointment of third-party ombudsman is an informal dispute resolution tool used by organizations. The ombudsman investigates complaints within the institution and prevents disputes or facilitates^ their resolution. In Bangladesh, in most of public Universities the post of ‘Proctor’ investigates complaints within the university and prevents disputes or facilitates their resolution.
The abovementioned list is not exhaustive. Other form of ADR can be practiced around the world. The simple thing to be kept in mind that ADR is an alternative approach to settle dispute outside the Court of law.
All the characteristics of some of hybrid models of ADR i.e. Private Judging, Neutral Expert Fact Finding, Mini-Trial, Ombudsman and Summer- jury Trial can be projected in the following table-
“Hybrid” Dispute Resolution Processes
|Characteristics||Private Judging||Natural Expert fact finding||Mini-trial||Ombudsman||Summary Jury Trial|
|Voluntary/ Involuntary||Voluntary||Voluntary of involuntary||Voluntary||Voluntary||Voluntary or Involuntary|
|Binding/ Non-binding||Binding subject to may be||Non-binding but results as correct||If agreement enforceable||Non-binding||Non-binding|
|Third||Party selected||Thrill-party neutral with||Party selected||Third party||Mock jury impaneled|
|third-party design maker, may have to be format judge or lawyer||specialized subject matter expertise may be selected by the parries or the court||neutral advisor sometimes with specialized subject expertise||selected by institution||by court|
|Degree of Formally||Statutory procure but highly fixable as to timing place and procedure||Informal||less formal than adjudication procedural rules may be set by parties.||Informal||procedure al rules fixed less formal than adjudication|
|Nature of Proceeding||Opportunity for each party to present proofs and acumens||Investigatory||Opportunity and to present summary present summary proofs and arguments||Investigatory||Opportunity for each party to present summary proofs and arguments|
|Outcome||Principled decision supported by finding of fact and conclusions of law||Report or testimony||Mutually accepted agreement sought||Report||Advisory verdict|
|Private/Public||Private, unles judicial enforcement sought||Private, unless disclosed in court||Private||Private||Usually public|
4.2 Provisions of ADR in Existing Bangladeshi Laws:
Historically, people ot this region are very peace loving and always like to stay in harmony and function as a cohesive unit in communities and societies, building an interdependent social fabric.
There are some specific references in our existing laws from where true intention of the Government towards pacific settlement of disputes can be assumed. The Government of Bangladesh has taken some positive steps. Every judge has to setde specific number of cases in every month. The High Court Division of Bangladesh Supreme Court issued some memorandums relating to section 89A of the Code of Civil Procedure, 1908, zndArtha Riv Adcilat. The memorandum relating to section 89A of the Code oi Civil Procedure, 1908 says that the judges shall get the credit of two contested cases if they can dispose of one case successfully by using ADR and tor r.vo unsuccessful cases they shall get the credit of one contested case. The memorandum relating to Artha Rj/i Adalat says that the judges shall get the credit of tvvo contested cases if they can dispose of one case successfully by using ADR, for the disposal of six ex parte cases by ADR the judges shall get the credit of two contested civil suits and for the disposal of one execution cases by ADR the judges shall get the credit of one contested civil suit.
There are many laws where the lawmakers keep scope for the parties to settle disputes br using ADR. Here we have included a List of such laws (the list is not exhaustive and there may remain other laws). They are discussed below-
4.3 The Contract Act, 1872 (Act No. IX of 1872):
Section 28 of the Contract Act, 1872 (Act No. IX of 1872)4‘18 while dealing -with the agreements in restraint of legal proceedings provides that every agreement by which any party thereto is restricted absolutely from enforcing his rights under or in respect of any contract by the usual legal proceedings in the ordinary tribunals or which limits the time within which he may thus enforce his right is void.
Exception 1 to this section provides that this section shall not render illegal a contract by which two or more persons agree that any dispute which may arise between them in respect of any subject or class of subjects shall be referred to arbitration, and that only the amount awarded in such arbitration shall be recoverable in respect of that dispute so referred.
Exception 2 provides that section 28 shall not render any contract in writing illegal by which two or more persons agree to refer to arbitration any question between them which has already arisen or affect anv provision of any law in force for the time being as to references to arbitration.
4.4 The Specific Relief Act, 1877 (Act No. I of 1877):
Section 21 of the Specific Relief Act, 1877 (Act No. I of IS7?)4“9 while dealing with the contracts which are not specifically enforceable provides that if in any contract, it is provided that in case of any dispute die contract is referred to Arbitration, the contract cannot be specifically enforced.
4.5 The Code of Civil Procedure, 1908 (Act No. V of 1908)
Incorporation of provisions relating to ADR is a groundbreaking step taken by the Government of Bangladesh. In 2003, two provisions i.e. section 89A and 89B4UI were incorporated in the Code of Civil Procedure, 1908 and very recently in 2006, a new provision i.e. section 89C was incorporated.
The Muslim Family Laws Ordinance, 1961 (Ordinance No. VIII of 1961)
The Muslim Family Laws Ordinance, 1961 (Ordinance No. VIII of 1961) contains a provision of Arbitration Council, which, is a body consisting of the Chairman and a representative of each of the parties to a matter dealt with in this Ordinance.413 The provisions of the Arbitration Act, 1940, the Code of Civil Procedure, 1908 and any other law regulating the procedure of Courts shall not apply to any such Arbitration Council.415 The Ordinance also provides that no man, during the subsistence of an existing marriage, shall, except with the previous permission in writing of the Arbitration Council, contract another marriage, nor shall any such marriage contracted without such permission be registered under the Muslim Marriages and Divorces ‘Registration) Act, 1974 (Act No. LIII of 1974). The Ordinance also contain? provisions relating to Arbitration council in sections 7 and 9.
The Industrial Relations Ordinance, 1969 (Ordinance No. XXIII of 1969):
The Industrial Relations Ordinance, 1969 (Ordinance No. XXIII of 1969) contains detail provisions on conciliation, arbitration, negotiation and mediation to be applied for the settlement of industrial dispute.
The Industrial Relations Rules, 1977:
The Industrial Relation? Rules. 1977418 contains provisions relating to Joint Consultation, Mediation and Conciliation. Rule 35 provides that for the purpose of bringing about a settlement of an industrial dispute, a Conciliator.-
(a) may call for an inspect any register, document, certificate or notice which he has reason to believe to be relevant to the dispute and may, in case of failure of the person to produce it in time, seize it; and
- may enter the premises occupied by any establishment to which the dispute relates, and require any person whom he finds in the establishments to give such information relating to the dispute as are within his knowledge.
Every Conciliator shall keep records of the conciliation proceedings in such a manner as he deems fit.
Where a notice of strike has been received by the Conciliator, he shall satisfy himself as to its validity before conducting the conciliation proceedings and if the notice of strike does not conform to the provisions of the Ordinance and these rules he may ask the party to the dispute to comply with the provisions of the Ordinance and these rules.
The Family Courts Ordinance, 1985 (Ordinance No. XVIII of 1985):
Under section 5 of the Family Courts Ordinance, 1985 (Ordinance No. XVIII of 1985)419, it is provided that the Family Courts have the jurisdiction to try five types of cases i.e. dissolution of marriage, dower, maintenance, custody and guardianship, restitution of conjugal rights. The provisions of this said Ordinance extends to the whole of Bangladesh except the districts of Rangamati Hill Tract, BanJarbaa Hill Tract and Khagrachari Hill Tract.4-” The Family Court is the right forum for the disposal of abovementioned five types of cases for people of all religion.
At first three pilot family courts was setup at Dhaka to exclusivelv effect reconciliation between parties. Soon there were 16 Pilot Family Courts in 14 Districts of Bangladesh. The success is tremendous. Then it was extended to other jurisdictions.
Most of the judges of the Family Courts initially try to settle any of the five types of cases by ADR. At the pre-tnal hearing the Court tries to make a compromise or reconciliation between the parties. If it fails, then the Court goes for the proceedings. After the trial and before the pronouncement of judgment the Court again tries to make a compromise or reconciliation between the parties. If the Court fails to make a compromise between the parties, it pronounces its judgment.
The Acquisition and Requisition of Immovable Property Ordinance, 1982 (Ordinance No. II of 1982):
The Acquisition and Requisition of Immovable Property Ordinance, 1982 (Ordinance No. II of 1982 was enacted to1 consolidate and amend the law relating to acquisition and requisition of immovable property.
4.6 Part V (sections 27-35} of the Ordinance deals with Arbitration.
This is also important to mention here that the Ordinance provides for Arbitration Appellate Tribunals.
Section 27 of the Ordinance provides that the Government shall appoint a Judicial officer, not below the rank of Subordinate Judge (now Joint District Judge), to be Arbitrator for such area as may be specified therein.
Any person interested against the decision of award made bP the Deputy Commissioner under this Act may, within forty-five days from the date of sendee of notice of the award, make an application along with the grounds of objection to the Arbitrator for revision of the award.
After having the application, trie Arbitrator shall require the presence of the applicant; all persons interested in the objection; the Deputy Commissioner; and the requiring person/1” Sections 30 and 31 of the Ordinance provide guidelines for the Arbitrator.
Every award of the Arbitrator shall be in writing signed by him. and shall specify the amounts of award. Every such award shall be deemed to be decree and the statement of the grounds of every such award a judgment within the meaning of secaon 2 (2) and section 2(9) respective!}’ of the Code of Civil Procedure, 1903 (V of 1908).
Against an award of the Arbitrator, an appeal shall lie to the Arbitration Appellate Tribunal, which consists of a member who shall be appointed by the Government from among persons who are or have been District Judges. A decision of the Arbitration Appellate Tribunal shall be final.
This Ordinance is a special law as section 35 of this Ordinance provides that nothing in the Arbitration Act, 1940 (X of 1940), shall apply to arbitrations under this Part. It should be minded that the Arbitration Act; 1940 (X of 1940) was repealed by section 59 of the Salish Ain, 2001 (Act No. 1 of 2001), which is now the existing law in this regard. So, it can be presumed that the nothing in the Salish Am, 2001 (Act No. 1 of 2001), shall apply to arbitrations under this Part.
4.7 The Bangladesh Rin Salishi Ain, 1989 (Act No. XV of 1989).
The Bangladesh Rin Salishi Am, 1989 (Act No. XV of 1989) was enacted to protect farmers from falling into indebtedness to moneylenders. The provisions of this Act extend to the whole of Bangladesh except the hill districts of Rangamati, Khagracbbari and Bandarvan and came into force on the 1st Baifhakh, 1389, or on the 14th April, 1982.
Section 13 of the Act provides for the creation of a Debt Setdement Board in anv Upailla. Every Board shall consist of one chairman and at least two, but not more than four other members and they shall work for four years. The Board has been given authority to accept petitions under sections 6, 1, 11, and 12, and executing them after a hearing.
The Rifi Salishi Board created under the Bangladesh EJn Salishi Ain, 1989 is a special forum for hearing applications filed by peasants against mahajans. It is created by a special law and as such the provisions of the statute should be strictly applied.431
4.8 The Bank Companies Act, 1991 (Act No. 14 of 1991):
Section 76 of the Bank Companies Act, 1991 provides that notwithstanding anything contained in any other Act for the time being in force, the High Court Division shall not sanction any compromise or arrangement brevet a banking company and its creditors or any class of them or between such company and its members or any class of them, or any amendment in such compromise or arrangement, unless the Bangladesh Bank is of the opinion that the compromise, arrangement: or the amendments therein are capable of being worked out and are not detrimental to the interests of the depositors of the banking company concerned. That means after having the positive opinion of the Bangladesh Bank compromise i.e. negotiation is possible.
4.9 The Salish Ain, 2001 (Act No. 1 of 2001)
The General Assembly of the United Nations in its Resolution No. 40/72, dated December 11, 1985. recommended that all States give due consideration to the Mode! Law on International Arbitration, in view of the desirability or uniformity of law ot arbitral procedures and the specific needs of international commercial practice. Like many other countries, Bangladesh enacted laws to give legal force to the United Nations Commission on Internationa! Trade Law, 1966 (UNCITRAL Mode! Law) within its jurisdiction. The previous law in this field was the Arbitration Act, 1940 (X of 1940).
In the case of M/s Guru Nank foundation Vs. M/s Rattan Singh & Son-. AIR 1981 SC 2075 at p. 2076, the Indian Supreme Court observed thus.
Interminable, rime consuming, complex and expensive Court procedures impelled jurists to search for an alternative forum, less formal, more effective and speedv for resolution of disputes avoiding procedural claptrap and this led diem to Arbitration Act, 1940 (‘Act’ for short). However, the \vav in which the proceedings under the Act are conducted and without an exception challenged in Courts, has made lawyers laugh and legal philosophers weep. Experience show; and law reports bear ample testimony that the proceedings under die Act have become high’v technical accompanied by unending prolixity, at every stage providing a legal trap to the unwary. Informal forum chosen by the parties for expeditious disposal of their disputes has by the decisions of the Courts been clothed with ‘legalese’ of unforeseeable complexity.
Again, in the case ot Food Corporation of India \’s. Jogidetpal Mohitiderpa/, AIR 19°89 SC 1263 at p. 1267, the Supreme Court of India observed:
We should make the law of arbitration simple, less technical and more responsible to the actual realities of the situations but must be responsive to the canons of justice and fair play and make the arbitrator adhere to such process and norms which will create confidence not only by doing justice between the parties, but by creating sense that justice appears to have been done.
Accordingly, on the basis of the UNCITRAL Model Law, in 1996, India enacted the Arbitration and Conciliation Ordinance, 1996. Similarly, the Government of Bangladesh also repealed the previous law and enacted the Salish Ain, 2001 (Act No. 1 of 2001). This Act was enacted to provide for the international commercial arbitration.
A series of Regulations including the Bengal Regulation, 1772 empowered the Courts to refer, either with the consent of the parties or at the instances of the parties certain suits to’ arbitration. Subsequently, Act No. 10 of 1861 and Act No. ~ of 1870 replaced these regulations. The successive Civil Procedure Codes enacted in 1859, 1877 and 1882 dealt with both arbitration between parties to a suit and arbitration without the intervention of a Court. Then came the Indian Arbitration Act, 1899. Then came the Arbitration Act, 1940 (X of 1940) which was based on the English Arbitration Act, 1934. Section 59 of the Salisb Ain, 2001 (Act No. 1 of 2001) repealed the Arbitration Act, 1940 (X of 1940).
The Parbatto Chattogram Bhumi Birod Nispotti Commission Ain, 2001 (Act No. LIII of 2001)
The Parbatto Chattogram Bhumi Birod Nispotti Commission Ain, 2001 (Act No. LIII of 2001) provides for a Commission which will settle the land dispute of hill tracts area. Under section 6 of the Act, the Commission shall try to settle land dispute in accordance with existing laws of Chittagong Hill Tracts, and with custom.
It will be relevant to mention here that the Rangamati Khagrachari and Bandarban Districts Local Government Parish.ids established under the Rangamati Parbatto Zilla stanio sarkar Parisbad Ain, 1989 (Act No. XIX of 1989), Kbagracbari Parbatto Zilla stario Sarkar Parisbed Ain, 1989 (Act No. XX of 1989) and Bangladesh Parbatto Zilla Stanio Sarkar Parisbad Ain 1989 (Act No. XXI of 1989) settle disputes by using traditions in Salisb.
4.10 The Somobai Samity Ain, 2002 (Ac*t No. XLVII of 2002):
Chapter Nine (section 50-52) of the Somobai Samity Ain, 2002 provides for dispute settlement. Section 50 provides for settlement of dispute through Registrar.
The Artba Rin Adalat Ain, 2003 (Act No. VIII of 2003)
The Act was enacted to amend and consolidate the provisions of existing: laws relating to recover)- of debt by the Financial Institution. In section 2. the Act defines ‘Financial Institute” as (a) Bangladesh Bank established under the Bangladesh Bank Order, 19″: (P.O. No. 127 of 1972); (bj Banks established under the Bangladesh Banks (Nationalisation) Order. 19~2 (T.O. No. 26 of 1972); (c) bank companies established or run under the provisions of the Bank Companies Act, 1991 (Act No. 14 of 1991); (d) House Building Finance Corporation established under the Bangladesh House Building Finance Corporation Order, 1973 (P.O. No. 7 of 1973): (e) Investment Corporation of Bangladesh established under the Investment Corporation of Bangladesh Ordinance, 1976 (Ord. No. XL of 19~6); (f) Bangladesh Shilpa Rin Shangstha established under the Bangladesh Sbii~a EJn Shangtha Order, 1972 (P.O. No. 128 of 1972); (g) Bangladesh Shilpa Bank established under the Bangladesh Shilpa Bank Order, 1972 (P.O. No. 129 of 1972); (h) Bangladesh jGw/fe Bank established under the Bangladesh Kri-ki Bank Order, 1973 (P.O. No. 27 of 19~3); (i) Rajshahi Krisbi Unnajan Bank established under the Rajshahi Kns-}i Unnayan Bank Ordinance. 1986 (Ordinance No. LVIII of 1986): ;]) Bangladesh Small and Cottage Industries Corporation established under the Bangladesh Small and Cottage Industries Corporation Act, 1959 (E.P. Act XVII of 1959); (k) Financial Institutions established under the Financial Institution Act, 1993 (Act No. 27 of 1993): (1) International Finance Corporation (IFC); (m) Commonwealth Development Corporation (CDC); (n) Islamic.
Development Bank f’IDB); (o) Asian Development Bank (ADB); (p) International Bank for Reconstruction and Development (IDRD); (q) International Development Association (IDA); and (r) any financial institute established under any law.
5.1 Settlement Conference:
Though Chapter V -‘Sections 21-25) of the Act deals with ‘Alternative Dispute Resolution’, provisions of sections 21-23 and 45 are relevant for our discussion. Section 21 provides for settlement conference, which is totally an innovative-step in Bangladesh. Explanation to section 21 of the Artba Rin Adalat Air., 2003 (Act No. VIII of 2003) defines ‘settlement conference’ as a conference which is presided by the Judge of the Court, where the parties to the suit, their appointed counselors and representatives can be present and the Judge tries to settle the dispute on the basis of informal, ‘non-binding, secret, non-competitive and mutual co-operation and compromise.
Section 21 says that after submission of the written statement the Court may arrange for a settlement conference in presence ot the parties to the suit, their counselors and representatives.
In such conference, the Judge of the Court shall preside and such conference will be held in camera.436 The judge shall try to settle the dispute peacefully but he shall not impose any form of force on the parties.437 The Court must complete the proceeding of such settlement conference within sixty- (60) days and in exceptional cases can extend thirty (30) days.
If the parties enter into any peaceful settlement then the Judge shall specify and write down the conditions in the form of an agreement and take the signature of both the parties as parties to the agreement and signature of dieir counselors and representatives as witness of the agreement and the Court shall pronounce Order or Decree on the basis of such agreement subject to the provisions of Order XXIII of the Code of Civil Procedure, 1908. The its Order or Decree, the Court shall also give direction that any Court ices which was submitted by the parties to the dispute during the starting of the case is to be refunded notwithstanding anything contained in the provisions of the Court Fees Act. 18~0 (Act No. VII of 1870).
Section 21 (10) of the Act provides that any Order given by the Court on the basis of such settlement conference is non-appealable and non-revisionable.
If the parties fail to enter into any settlement, then the Court shall restart the proceeding of the case as if there was no such settlement conference.
Moreover, the parties to the dispute may compromise under rule 3 of Order XXIII of CPC even if the parties fail to enter into any settlement.
Section 22 of the Act provides for media Don. This section says that if the Court does not give any order for settlement conference, then it may take initiative to settle the dispute between the parties through mediation after submission of the written statement. But if the parties to the suit apply to the Court for of dispute through mediation, the Court must take initiative to settle dispute through mediation.
In such conference, the parties to the dispute shall engage an independent third part lawyer or a retired Judge, or a retired bank or financial institute-officer as mediator but shall not engage any person who is holding any office of profit of the Republic. The parties shall settle the salary and procedure of mediation. The mediator must complete the proceeding of such settlement conference within sixty (60) days and in exceptional cases can extend thirty (30) days.
If the parties enter into any peaceful settlement then the- mediator shall specify and write down the conditions in the form of an agreement and take the signature (or in appropriate case, thumb impression of left hand) of both the parlies as parties to the agreement and signature of their counselors and mediator as witness of the agreement. The mediator shall submit a report to the Court regarding the agreement between the parties. The Court shall pronounce Order or Decree on the basis of such report or mediator subject to the provisions of Order XXIII of the Code of Civil Procedure, 1908.444 In its Order or Decree, the Court shall also give direction that any Court fees which was submitted by the parties to the dispute during the starting of the case is to be refunded notwithstanding anything contained in the provisions of the Court Fees Act, 1870 (Act No. VII of 1870).
Section 22 (11) of the Act provides that any Order given by the Court on the basis of such mediation is non-appealable and non-revisionable.
If the parties fail to enter into any setdement, then the Court shall restart the proceeding of the case as if there was no such mediation.
Moreover, the parties to the dispute may compromise under rule 3 of Order XXIII of CPC even if the parties fail to enter into any settlement through mediation.
Section 45 of the Act provides that nothing in section 21 or 22 of the Act shall bar the parties to suit to conciliate the dispute between them.
5.5 Limitation of Alternative Method:
The Act limits the scope of using the alternative method. Section 23 of the Act provides that only one method, either setdement conference or mediation can be accepted in any dispute and after finishing one, another cannot be claimed or granted.
The Bangladesh Energy Regulator)’ Commission Act, .2003 (Act No. XIII of 2003):
The Bangladesh Energy Regularity Commission Act, 2003 (Act No. XIII of 2003) in Chapter – X in section 40 deals with disputes resolution through arbitration notwithstanding anvtl 2001) or any other law between licensees and the Bangladesh Ens Commission is empo dispute, The rales re Arbitrators appointed commission and the regulatory Commission Act, 2003 (Act No.-XIII :er X, in section 40 deals with disputes resolution by the Commission. Section 40 provides that ing contained in the Stilish Ain, 2001 (Act No. 1 of v for the time being in force, any dispute arising out between licensee and consumer shall be submitted to :rgv Regulatory Commission for settlement. The Commission is empowered to declare award or appoint arbitrator to settler such resolution shall be prescribed by “law. The by the Commission shall submit the award before the commission shall give the following order, namely
(a) confirmation of award and implementation;
(b) suspension or amendment of award; or
(c) transter or ward to review by the Arbitrator.
The award declare bv :he Commission shall be final as it were a decree of Civil Court.
The Bind Mimangsha (Pouro Alaka) Board Ain, 2004448 (Act No. XII of 2004):
Object of this Act:
This Act was enacted to set up a Dispute Resolution Board in a Paurashava for the speedy disposal of certain offences mentioned in the Schedule to this Act.
Scope of this Act:
The Act is applicable only in Paruashara area declared under the paurasbave Ordinacne, 1976.
Jurisdiction of the Board:
This Act is a special law and it says that die offences that are included in the Schedule to this Act shall be triable by the Dispute Resolution Board and no civil or criminal Court shall have jurisdiction to try such cases.45”
Offences or Cases Triable under this Act:
The Board shall have the authority to are the following offences if it is committed in any municipal area or if the parties reside in a municipal area-
5.6 Criminal Cases:
The Board shall decide the following criminal cases-
Sections 143 and 147 of the Penal Code, 1860, to be read with third and fourth paragraphs of section 141, when there is a common intention behind die unlawful assembly and any offence is committed under section 326. 426 or 447 of the Penal Code. 1860 and when not more that ten persons are involved in that unlawful assembly.
Sections 160, 323, 334, 341, 342. 352, 358, 426, 447, 504, 506 (First Paragraph), 508, 509, 510 of the Penal Code, 1860.
Offences under sections 379, 380 and 381 of the Penal Code, 1860 when the offence is relating to domestic animal.
Offences under sections 379, 380 and 381 of the Pens! Code. I860 when (lie offence is rehting to property other than domestic animal and the value of the property does not exceed 25,000/ =
Offences under section 403, 406, 417 and 420 of the Penal code when the amount does not exceed 25,000/=
Offences under section 427 of the Penal code, when the amount does not exceed 25,000/=
Offences under sections 428 and 429 of the Penal Code, when the value of the animal doe? not exceed 25,000/=.
Offences under sections 24, 26 and 27 of the Cattle Trespass Act, 1871 (Act No. 1 of 1871).
abetment of any of such offences.
5.7 Civil Cases:
The Board shall decide the following civil cases-
- Money suit arising out of any contract, receipt or any instrument when the amount claimed does not exceed 25,000/=
- Suits for the recover/ of possession of immovable property when the value of the suite does not exceed 25,000/=.
- Suits for the recover; of possession of movable property when the value of the suit does not exceed 25,000/=.
- Suits for compensation arising out of cattle trespass when the claimed compensation does not exceed 25,000/=
The EPZ Sramik Sbongba abong Shilpa Shamparka Ain, 2004 (Act No. XXIII of 2004):
The Act contains Chapter V Sections 47-54) relating to conciliation and mediation.
Section 48 says that on the basis of the recommendation of the Executive Chairman, the Government shall appoint required number of Conciliator with specific jurisdiction. The conciliator shall work after having the notice that the workers and the employers settle the dispute by themselves.
Then the conciliator shall invite both the parties and the parties shall have the options to be present in person or by their representatives. Then the conciliator shall try to settle the dispute and if he becomes successful then he shall take the signature of both parties.45; If the conciliator fails then he shall encourage the parties to settle the dispute by an arbitrator who shall be chosen from the panel constituted by members nominated by the executive chairman.433 If the parties agree and if the arbitrator gives a decision that shall be binding in the pardes and be final and not appealable.
The Cooperative Societies Rules, 2004:
The Cooperative Societies Rules, 2004454 framed under section 88 of the Coopers rive Societies Act, 2001 (Act No. XI .VII of 2001), under Chapter Nine -‘rules 111-122) deals with dispute settlement.
The Village Courts Act, 2006 (Act No. XIX of 2006):
The village Courts Act, 2006 (Act No. XIX of 2006) provides for die constitution of village Courts to be constituted by a Chairman and two members to be nominated, in the prescribed manner, by each of the parties to the dispute.456 The village Courts are authorized to try civil cases when the amount claimed or the price of movable property)-, or the value of immovable property involved does not exceed twenty five thousand taka. The village Courts are authorized to try following civil cases457– Suit for the recovery of money due on contracts, receipts or other documents.
- Suit for the recovery of movable property, or for the value there of.
- Suit for the recovery of possession of immovable property within one year of dispossession.
- Suit for compensation for wrongfully taking or damaging movable property.
- Suit for damages by cattle trespass.
- Suits for recover of wages and compensation payable to agricultural labourers.
Against the decision of the village Court, under the Ordinance of 1996 appeal was not possible but revision to the Assistant Judge was permissible. But the present Act of 2006 empowers the parties to the dispute to prefer an appeal to the Assistant Judge or to the Magistrate of First Class in some selective cases.459
5.8 Recent Developments in ADR:
Very recently, in national and international level there are some developments in ADR. In Bangladesh, the concept of ‘Appellate Mediation’ has only very recently been incorporated in CPC. In the international level, now there is a debate going on i.e. whether ADR is in inconsistent with the constitutional right of ‘Fair Trial’. Most of the countries of the world having written constitution keep special provision on ‘Right to fair trial’.
We do not think that ADR is violating the people’s right to fair trial as none of the parties to the dispute is bound to follow the ADR process except in arbitration. In ADR, come together joint in the Court and resolve their problems. If anybody wants to bring his case in the Court of law, ADR does not discourage him.
Finally, the whole idea of ADR can be sum up in the words of Fazlul Huq, Secretary, Madaripur Legal Aid Association (MLAA), in the following way-
‘Mediation in the rural society of Bangladesh is virtually of immemorial origin based on customary practices having its deep roots in the cultural heritage of this sub-continent. Easy access to social justice, particularly distributive, through equal participation for those who now share stark deprivation and poverty is the need of the hour. Recent trends and development in the field of dispute resolution indicates that people in general tend to prefer mediation to litigation. In this backdrop, mediation (ADR) should be allowed to play a role free from any statutory regulations and control.
6.1 Problems / Findings:
The findings of my thesis paper and as follows:
- People in Bangladesh are not aware about ADR as well as protection of child rights.
- ADR of the society are not considered equally but differentiated strictly.
- Lack of knowledge about rules and restriction for engaging children at work.
- There is no specific age mentioned in the law of Bangladesh for juvenile.
- The government of Bangladesh does not ensure the equality of all children in the society.
The Recommendations of my thesis paper and as follows:
- People should be more aware about ADR System.
- ADR System justices of the society should be considered equal.
- To make people more conscious about rules and restriction for engaging ADR System justices.
- To mentions a specific age in the law of juvenile.
- The government should ensure the equality of all children in the society.
- Death penalty should be stopped of juvenile.
- The government should take proper steps to educate the children who are deprived of educational advantage.
7.1 Concluding Remarks
The formal law of Bangladesh attempts to protect its citizens against all forms of discrimination. ADR System justices are not the exception but the rule. This is evident not only from the juvenile justice laws but also from the Constitution of Bangladesh which ensures that ADR System justices and others shall be entitled to protection against all forms of discrimination. The Constitution also guarantees everyone the right to life, liberty and freedom from arbitrary detention. While the right to bail and a fair and speedy trial is embodied in the Constitution, it also gives every citizen the right to freedom from torture and other cruel, degrading and inhuman treatment.
ADR System justices who come in conflict with the laws are not different from other children. It is only the particular situations they find themselves in that set them apart from ordinary children. In the circumstances, designating children in accordance with the offences committed by them essentially have a labeling effect, which is hardly compatible with their rights under the law. This is compounded by the fact that many children are institutionalized for activities that hardly merit as “offences’, much less treatment. In the circumstances, the children are very often subjected to double victimization.
The impact of corrective measures under the existing system appears inscrutable to say the least. Given the diversity of factors that compel ADR System justices breach the law, it is necessary for the juvenile justice system to assume a differential approach towards treatment of ADR System justices come under its purview. In this regard, distinction must be made between child victims of abuse and those who have broken the law. While non-institutional methods should be applied in helping maladjusted children, attempts must be made for separating status offences from criminal offences. Indeed, sentencing and institutionalization on false or minor charges harden children to life’s realities and provoke them into committing real crimes the next time.
The situation is compounded by parents/guardians who prefer to abdicate their responsibilities by handing over their children to correctional institutes for being wayward and uncontrollable. This is indicative from the preponderance of guardian-referred cases than police referred ones in correctional institutes. Although one may deduce from this scenario that Bangladesh has the trappings of a welfare state this is certainly not the case in actuality.
Currently, thirty-eight states and the federal government authorize the death penalty as an acceptable form of punishment for certain acts of murder.
Fifteen of those states have expressly established eighteen as the minimum age for imposing the death penalty, and four have established seventeen as the minimum age.
Florida’s Supreme Court recently held that the state constitution requires offenders to be at least seventeen before they can be sentenced to death.
Nine states have expressly required offenders to be at least sixteen years old, and while the remaining ten states do not set a minimum age, Thompson’s constitutional minimum of sixteen years of age is controlling.
Although the death penalty-free jurisdictions of Iowa, Massachusetts, and the District of Columbia have proposed imposition of the death penalty, no action has been taken yet, and it remains unclear whether a juvenile death penalty would be included.
With the growing emphasis on harsh punishments for juvenile offenders, state legislatures seem to be moving toward lowering the minimum age required for imposing a death sentence.
Other states are giving prosecutors more discretion in choosing the court in which to file, without requiring the consent of the court or even an individual hearing before prosecuting juvenile offenders in adult court for serious felonies.
The age at which juveniles can be transferred out of the juvenile court system, with its emphasis on rehabilitation, and into the more punitive adult criminal court has been steadily declining.
- Afsaruddin, Mohammad, Juvenile Delinquency in Bangladesh, (Dhaka: University of Dhaka,) 1993.
- N.V. Paranjape, Criminology and Penology, (Allahabad: Central Law Publication1993), pp. 195-296.
- Ruth Shonle Cavan, Juvenile Delinquency: Development, Treatment, Control, (New York: J.B. Lippincott Company, 1969), p. 4.
- Tappan Paul, Juvenile Delinquency, (New Yourk: McGraw Hill, 1949), p. 32.
- Dr.Sumaiya Khair,Street Children in Conflict with the Law SCF,(UK)2000,pp.70-71
- Kibria, Md. Golam, “Delinquency Prevention, Juvenile Justice and Protection of the Young: A View from Developing Countries”, The Detective, Vol. VII, No. 1, 4 January, 1992, p. 59.
- Sarker, Abdul Hakim, “Aparadh Paristhiti O Jatia Parikalpona: Ekti Parjalochana”, Seminar on Aparadh O Parikalpona, Samajik Punudher Samiti (Bengali), Dhaka, 1988, p.25
The Bengal Jail Code, 1894 (Act No. IX of 1894).
The Criminal Procedure Code, 1898 (Act No. V of 1898).
The Penal Code, 1860 (Act No. XLV of 1860).
The Jail Code Rule, 194 (Rule No. IX of 1894).
The Prison Act, 1894 (Act No. IX of 1894).
The Prisoners Act, 1871 (Act No. III of 1900).