An Analysis of ADR and its Importance in Justice System in Bangladesh

Concept of Alternative Dispute Resolution (ADR)

It is said that “The more laws, the less justice”. It should be known to all that, law is not the only key to bring justice or, law does not always suffice to ensure justice. Where the law failed to ensure justice, then equity came to “fill the gap”. Alternative Dispute Resolution (ADR) is an equitable process which ensures easy access to justice.

Usually, whenever we have any conflict of interest, we go to court and the court examines facts, testimony, evidence based on which it delivers a judgment. It is the duty of the court to provide fair justice. Article 27 of the Constitution of People’s Republic of Bangladesh guarantees equality before law as one of the fundamental rights of the citizens’ of the State, which states-“All citizens are equal before law and are entitled to equal protection of law.”

Article 31 of the Constitution of Bangladesh states- “To enjoy the protection of the law, and to be treated in accordance with law, and only in accordance with law, is the inalienable right of every citizen.”

It is known to all that, the fundamental rights are judicially enforceable. So, it is the duty of court to enforce that right of citizen. But huge amount of litigations are pending before the Appellate Division of the Supreme Court (SC), High Court (HC), and in lower courts also. The problem is that, the victims cannot reach the door of justice due to the lengthy time frame and procedural obligatory burdens. And sometimes the victims are not satisfied with the court’s ruling because of legal lacuna and biased authority. Therefore, hostility prevails in the society.          

Resolving the dispute outside the court- A good Alternative Option for laymen

All types of courts in Bangladesh are burdened with a good number of litigants. These problems have been arisen because of the defects of adversarial system. In such circumstances, ADR play a vital role to resolve the problem. ADR is the process of settling disputes by the parties at a lower cost and shorter time rather than by the traditional justice system.

In the words of Justice Mostofa Kamal, “ADR is a non-formal settlement of legal and judicial disputes as a means of disposing of cases quickly and inexpensively. It is not a panacea for all evils but an alternative route to a speedier and less expensive mode of settlement of disputes. It is a voluntary and co-operative way out of the impasses”[1]

ADR in Civil Justice System in Bangladesh

In Bangladesh, for the first time, the provisions of ADR was incorporated into the Family Court Ordinance, 1985. But those provisions were not totally functional. In 2000, by the initiative of the Ex-Chief Justice Mustofa Kamal based on the success of his pilot projects, the Government of Bangladesh again incorporated the ADR provisions into the Code of Civil Procedure, 1908. But initially, it was optional. In 2012, after the amendment of this Act, the provisions of ADR  now  have been made compulsory  for every civil matters through the incorporation of Sections 89A and 89C of the Civil Procedure (Amendment) Act, 2012 [2].

The provisions of ADR have also been introduced in The Muslim Family Laws Ordinance, 1961, The Customs Act, 1969, The Income Tax Ordinance, 1984, The Value Added Tax Act, 1991, The Legal Aid Rules, 2015, The Arbitration Act, 2001, The Artha Rin Adalat Ain, 2003, The Conciliation of Disputes (Municipal Areas) Board Act, 2004, The Labor Act, 2006, The Village Court Act, 2006 and The EPZ Trade Union and Industrial Relation Act, 2004.

ADR in Criminal Litigation in Bangladesh

ADR has not been yet widely introduced in criminal justice system. Section 345 of the Code of Criminal Procedure, 1898 enacts provision for compromise. In Md. Joynal and others v. Md. Rustam Ali Mia and others, it is states that,

“That they encourages settlement of dispute either by Panchayet or by Arbitration or by way of compromised or other and if it is a criminal offence, the offence can be compounded within the limit of section 345 of Code of Criminal Procedure.”

Section 345 (1) provides the list of offences which can be compounded without the permission of the court and Section 345 (2) provides the list of offences which can be compounded only with the permission of the Court.

Remarkable progress through ADR in Civil Justice System of Bangladesh

About 60 percent conflicts in the family courts have been disposed through compromising by the process of mediation. More than 2418 suits under the pilot project have been solved through the way mediation from 2000-2004. More than 12402 cases have been disposed through mediation, under sections 89A and 89C of the code of civil procedure, 1908 from 2003-2006. Also, about 24945 cases in the Artha Rin Adalat Adalot, have been resolved through ADR from 2003-2006.

‘Win-Win Situation’ – Practicability of Introducing ADR in Criminal Justice System as a Holistic Approach

Bangladesh government has successfully incorporated the policy of the Alternative Dispute Resolution in civil matter to ensure justice. And the result is praiseworthy. But the question is -why this type of praiseworthy result is not seen in criminal justice system?

There are some lacunas in this regard which, before introducing the ADR in criminal justice system, we have to think about-

1. We do not have sufficient institutional framework and trained mediator. Some people even do not know about this process. So in this situation is it justified to introduce ADR in criminal justice system?
2. Will the victims be able to ‘freely’ negotiate for a fair outcome in the corrupted society?
3. Will the lawyers follow “Win-Win” principle?
4. Will it be reasonable to believe in “one win, one loses” principle in a serious felony like murder, rape? Or, Will it be appropriate to deal a criminal case with ADR?
5. How far the justice will be ensured in relation to the applicability of ADR in criminal justice system?
6. How far the judges will be able to determine the actual guilty in a criminal case by applying ADR system?
7. If plea bargaining is introduced, is there any chance of “abuse of power”?

Well, the answer is pretty much uncertain and impossible to find out with due reasoning.

Advantage of ADR in Ordinary Justice System

ADR is a process that is less expensive for the parties to the suit which provides quicker resolution of dispute, increases satisfaction of the disputants, improves Advocate-client relationship, ensures justice for disadvantaged group. In rural areas, the court is a taboo for women, ADR process ensure privacy as it is a confidential process. It also reduces the harassment of victim.

Necessary Suggestions

There are some recommendations necessary to make effective the ADR mechanism-

1. The judges and lawyers should be properly trained up.
2. Public awareness should be made
3. A Statutory body should be incorporated for formulating rules, planning and monitoring the whole ADR system.
4. Positive impressions  should  be  increased  among  the lawyers regarding ADR
5. To ensure the independence of judiciary and transparency of prosecution.
6. Corruptions should be removed.

Numerous cases are pending before court. Similarly the defendants of the numerous cases are in prison for years without trial. Their human rights are being violated. In such case the court should encourage the parties to settle the cases through ADR, then, the litigants will get justice within a shortened period of time.

Writer:

Lamia Khan Shethil, Vice-President (Events), NILS DIU Chapter &  Student of Department Of Law, Daffodil International University

Reference:

[1]Akhtaruzzaman Md, Concept and Laws on Alternative Dispute Resolution and Legal Aid, Shabdakoli Printers, Fourth edition, 2011, p.09

[2]Ettie  Ward,  Mandatory  Court-Annexed  Alternative Dispute Resolution in the United States Federal Courts: Panacea or Pandemic? St. John’s Law Review, Vol. 81, 2007; Retrieved from SSRN: http:// ssrn. com/ abstract= 993220.