CIVIL JUSTICE SYSTEM IN BANGLADESH

CIVIL JUSTICE SYSTEM IN BANGLADESH

CIVIL JUSTICE SYSTEM: Disputes are a fact of life. A. D. R. means Alternative Dispute Resolution, mostly applied to civil cases. It delivers formal justice and it is oblivious of the sufferings and woos of litigants, of their waste of money, time and energy and of their engagement in unproductive activities, sometimes for decades.

Most of us who are or were in the judiciary and were or are practicing in the Bar think that nothing can be done about it, or, at least, we have no role to play in the matter, either individually or collectively. We are drifting into a stage of aimlessness, inertia, inaction and helplessness.

What is Alternative Dispute Resolution (ADR?)

Alternative Dispute Resolution refers to the means of settling disputes without going through legal procedures. Normally authority does not challenge it. It is not institutionalized, but both the community members and the disputants accept it. There are different ways to resolve disputes.

Objectives of ADR

The prime aim of alternative dispute resolution system in civil justice delivery system in Bangladesh is closing the hostility between the disputing parties and restoration of harmony.

Different forms of ADR and their application in civil justice system:

Negotiation, mediation and arbitration are the most common features of ADR techniques in Bangladesh. Let us discuss the three important ways of dispute resolution.

Laws pertaining to ADR in Bangladesh:

a) Code of Civil Procedure,1908

Surely, this concept is a denovo in our civil justice delivery system. Now ADR has come within the domain of civil procedure code.
Section 89A lays down that except in a suit under the Artha Rin Adalat Ain, 1990 (Act. no 4 of 1990)

The government by amending the Code of Civil Procedure expands the avenue for shalishi. By The Code of Civil Procedure (Amendment) Act, 2003 two new sections were incorporated (section 89A, 89B) in the code. It empowers the court to solve the matter through mediation or conciliation before the beginning of the trial except case under Artha Rin Adalat Ain. However there remain some limitations too, it will not exempt the disputant parties from the appearance before the court. This law is only relating to the pending cases,

In the mediation procedure, the court may take initiative to settle the dispute in the suit by itself or by making reference to independent mediators. ADR system is gaining popularity. This procedure will help to reduce the huge backlogs of civil cases in courts.

Public confidence in the judiciary will thereby increase. Access to justice will be expanded. The provisions will also help develop a new culture of consensual settlement of disputes doing away with the existing adversarial procedure. It will help protect and preserve cohesion and fraternity in society. Of the mediator here the advocate or any other person may be hired for mediation.

b) Artha Rin Adalat Ain, 2003

The delay caused made the bank sector suffer for non-realisation of dues in time and the bankers gathered bitter experience in realising the same. To remove this difficulty, the government enacted a special piece of legislation named “The Artha Rin Adalat Ain, 1990” which had gone under some changes by way of amendments since its inception. The law brought changes to a great extent in the administration of justice delivery system for regulating those suits but it failed to fulfil the expectation of the legislators/bankers to recover the dues expeditiously from the defaulters. The thinkers on the subject gave second thoughts to frame a new law and ultimately the legislature passed “The Artha Rin Adalat Ain, 2003” (hereinafter Adalat) by repealing the earlier one.

The law came into force on 1st May 2003 except sections 46/47 which came into operation on 1st May 2004. Within a short span of time, the law has gone under an amendment by the Artha Rin Adalat (Amendment) Ain, 2004 which reflects weak draft of the law.

I have been working as a Judge of the Adalat for more than two years.

There is no such legal provision in the Environment Court Act, 2000 like the present one. Section 19 has provided provisions for setting aside the ex parte decree but it does not make any provision for notifying the plaintiff bank like Order 9 Rule 13 of the Code of Civil Procedure 1908. As a result, the plaintiff remains ignorant about restoration of the suit.

This anomaly should be removed by inserting appropriate provision. Section 20 of the law has given finality to the order, judgment and decree of the Adalat. In spite of that the defaulter(s)/borrower(s) is/are challenging the same in the writ jurisdiction of the High Court Division under Article 102 of the Constitution of the People’s Republic of Bangladesh and obtaining stay orders from the High Court Division.

c) Family Courts Ordinance, 1985:

The Family Courts Ordinance, 1985 speaks for the settlement of dispute through conciliation inside the Court before the formal proceeding of the trial started. The court may initiate a pre trial hearing to settle the disputes relating to dissolution of marriage, maintenance, and dower, restitution of conjugal rights as well as guardianship and custody of children. Besides, the Muslim Family Laws Ordinance 1961 empowers the Union Parishad to form an Arbitration Council for reconciliation between the parties wishing to dissolve their marital tie through Talaq and to deal with the polygamy.

“ADR in family court”

If ye fear a breach between them twain, appoint (two) arbiters, one from his family, and the other from hers; The procedure provides in family court is-

i) When the written statement is filed, the Family Court shall fix a date ordinarily of not more than thirty days for a pre-trial hearing of the suit.^[6]

ii) On the date fixed for pre-trial hearing, the Court shall examine the plaint, the written statement and documents filed by the parties and shall also, if it so deems fit, hear the parties.^[7]

iii) At the pre-trial hearing, the Court shall ascertain the points at issue between the parties and attempt to affect a compromise or reconciliation between the parties, if this be possible.^[8]

iv) If no compromise or reconciliation is possible, the Court shall frame the issues in the suit and fix a date ordinarily of not more that thirty days for recording evidence.^[10]

vi) After the close of evidence of all parties, the Family Court shall make another effort to effect a compromise or reconciliation between the parties.^[11]

vii) If such compromise or reconciliation is not possible, the Court shall

Arbitration Act 2001.

Arbitration Law in Bangladesh

Bangladesh has enacted the Arbitration Act 2001 (the Act). It came into force on 10 April 2001, repealing the Arbitration (Protocol and Convention) Act 1937 and the Arbitration Act 1940, legacies of the British Raj in India. The new Act was again amended in 2004 in certain respects. Such legislative steps were urgent in the face of increasing foreign investment in Bangladesh in various sectors, especially in natural gas and power, and the ever-growing export trade with the rest of the world. The Act consolidates the law relating to both domestic and international commercial arbitration. It thus creates a single and unified legal regime for arbitration in Bangladesh. There are also stray provisions as to arbitration, scattered in special Acts.

Concluding Recommendation:

The key to success of A.D.R. in Bangladesh lies in the manner of its introduction. A.D.R. is no longer an unheard of concept of dispute resolution among judges, litigants and lawyers of Bangladesh. The mediation output of all the Assistant Judges, taken together, is something to be proud of. The Ministry of Law only needs to collect maintain and update all relevant statistics in this regard. Other initiatives are given below:

1)      Creating awareness about ADR

2)      Spreading the success story of ADR

3)      Encouraging NGOs to become involved in ADR

4)      Involving the Bar Associations in ADR

5)      Providing training for mediators

6)      Matching Government and NGO efforts.

7)      A. D. R. will have a-smooth transition if it is introduced on a pilot court basis.