Alternate Dispute Resolution by regan ahmed

Alternate Dispute Resolution (ADR) as an Alternate Access to Justice Chapter 1 INTRODUCTION 1.1 Introduction

Resolution of disputes is an essential element of societal peace, amity, comity and harmony, and easy access to justice. It is evident from the history that from prehistoric time, the function of resolving dispute has fallen upon the shoulders of the powerful ones like the tribal chiefs or the kings or on the wise ones like the village tribunals of Panchayats or the Qazis. The evolution of modem States and sophisticated legal mechanisms, (the courts ran on very formal lines, presided over by trained adjudicators) has made the system cumbersome and lengthy . ADR means Alternative Dispute Resolution, mostly applied to civil cases. When a civil case is instituted in a court of competent jurisdiction, the reality is that a long lime is taken to serve the process. In every step of the case, so many complexities arise. As a result, it causes delay and uncertainty about the result of the suit. So, the people want to settle their dispute outside the court in the system of ADR. In the system of ADR, there must be peaceful Negotiation and Arbitration and this system give "win-win" award to the parties either way. We are hopeful to settle dispute peacefully and ensure justice to the people of our society. The ADR movement received a major fillup in Bangladesh in 2003. It has been formally inaugurated in our civil justice deliver system by

The Code of Civil Procedure (Amend) Act, 2003 which have indeed institutionalized the ADR system. There are two sections. One section is Mediation and another is Arbitration. In this context the emergence of alternative dispute resolution has been one of the most significant movements as a part of .conflict management and judicial reform, and it has become a global necessity lawyers, law students, lawmakers and law interpreters have started viewing disputes resolution in a different and divergent environmental light and with many more alternatives to the litigation. While ADR is, now, envisioned and ingrained in the conscience of the Bench and the Bar and is an integral segment of modem practice. Taking these views in mind the ADR system can be introduced and developed in our present society beside the formal justice system in order to eliminate the endless suffering of the poor litigation of our country. 1.2 Definition of ADR The collaboration of the term ADR is alternative dispute resolution. It is a dispute resolution mechanism, which is used alternatively. Alternative dispute resolution (ADR) is an informal, flexible, non-binding, confidential, non-adversarial, and consensual dispute resolution process outside the ambit of conventional legal system. Full of ceremonies and technicalities in which the mediator or arbitrator tries to reach in an amicable solution between the parties using good office without directing or dictating the terms and conditions of such compromise, in a case pending in a court of Justice either by the court itself or with its consent by others. The term "Alternative dispute resolution" can refer to every thing from facilitated settlement negotiations in which disputants are encouraged to Negotiate directly with each other prior to some other legal process, to arbitration systems or mini trials that look and feel very much like a court room process.

1.3 Importance In most of the developing societies laws are written and Judgments are delivered in the languages not understood by the people. The greatest inequality prevailing in the developing societies is the inequality between the educated few and uneducated multitude. 2 The civil justice system of Bangladesh has failed to Administer Justice in a timely manner. The Adversarial model which is currently prevailing in our country appears poorly designed to meet the needs of a rural population with widespread poverty, illiteracy and unfamiliarity with formal Justice delivery system. The British colonial ruler established British common law style court in this country to substitute traditional rural form of local dispute resolution, which involves respected adjudicators in more conciliatory less formal process and greater flexibility in remedial action. This system not only failed to ensure justice to the rural poor but also exhibits it total failure to ensure Justice to the people from all levels of society to ensure access to justice for all and for breaking the vicious circle of backlog and delay we not only need the Adaptation of a modem process of case flow management but also need to introduce an effective system of alternative justice system 4 under the traditional litigation system, where the procedure starts with the filing of a complaint, petition or plaint, administration of justice has some practical limitation like cumber some formalities delay in trial, high cost frequent corruption among some members of the bar, bench and court staff etc. which defeat the very purpose of justice. Besides those courts in this region are over burdened with litigations and the number of cases pending before the courts are constantly on the increase because of these factor people are interested for alternatives to the court adjudication. Alternatives means of dispute resolution like negotiation Mediation arbitration etc. are not new in our society. They have been existed in our country since long5. The Alternative depute resolution is complementary to the civil Justice system in Bangladesh. The civil courts are over burdened with cases. On Average a civil matter takes about 5 years from filling to decision in a district court. In some cases the total period from filing in the first instance court to decision by the appellate Court may extend to 15 to 20 years. In view of the unusual lengthy and clumsy procedure many decree holders give up the hope of getting the fruits of the decree and the litigants become frustrated they loss the faith over Judiciary.

Chapter 2 BACKGROUND OF ADR

2.1 Background of Alternative Dispute Resolution (ADR) The background of alternative dispute resolution has been discussed below in Border to understand the gradual developments of alternative dispute resolution system in different countries including Bangladesh. 2.2 Philosophical Basis of Alternative Dispute Resolution (ADR) From the time immemorial disputes and conflicts have been seen in all societies, cultures. Nations, Groups and individuals have tried to manage the conflicts throughout the history to minimize the negative impact and undesirable effects. Disputes and conflicts have been recorded from the very early days of mankind. If we look at the history, we will find that disputes have been

solved

though

various

process

including

negotiation

Mediation, arbitration and war. Alternative dispute resolution is not a new one. In ancient period Panchayat system was popular. Disputes were resolved by village headman, even in the past history. We find that Panchayat system was in force in the Indian subcontinent including our country. Alternative dispute resolution is probably drawn from Confucianism in ancient China inspired by Confucianism. In ancient the primary method of settling deputes. The philosophy of Confucius was in essence, one of harmony of peace and of compromise resulting in a win wins combination. In its philosophical perception alternative dispute resolution process is considered to be mode in which the dispute resolution process in qualitatively distinct from the judicial process. Gradually alternative dispute resolution has been developed and taken the present shape. 2.3 A Brief History of Alternative Dispute Resolution (ADR) Dispute resolution out side of courts is not new. Societies, world over have long used nonjudicial, indigenous methods to resolve the disputes. The new feature is the extensive promotion and proliferation of alternative deputes resolution models and the increasing use of alternative dispute resolution as a tool to solve the disputes. The recent anthropological and sociological studies of traditional societies confirm that people of old age used to practice ADR. For example the first table of twelve table of ancient

Rome contained provision relating to ADR. It says "when parties have made an agreement announce it if they do not agree". They shall state their case in the forum before noon. They shall plead together in person Afternoon let the Judge pronounce. If both are present the case shall end at sunset1. In Indian sub-continent, there was a system of 'Panchayat' where arbitrator called a Tanch' decided any issue in dispute and he was respected in such a way that nobody even tried to disobey his decision. This method is since independent of a formal court system. May be based expensive distant or other wise in accessible to a population. 2.4 Features of ADR ADR is alternative something as complementary of present system to remove judiciary from extra burden. If it is distinguished from adjudication by virtue of its need to achieve consensus between the parties in order to be able to revolve a dispute. It is distinguished from traditional bilateral or multilateral negotiation by a number of features. Firstly: By the fact that is generally involves the inter cession of a neutral third party. Who acts as a facilitator of the dispute resolution process. Secondly: By the existence of carton structures within which those negotiation can take place and be enhanced. Thirdly: By the greater involvement in the process which most ADR offer to the parties than traditional negotiation under taken by the professional representatives. Informality is the most fundamental characteristic of ADR. Like ordinary court of law in ADR there is absence of many formalities. For example in court of law many formalities like court fee, suit valuation stamp, appointment of law years. Framing issue or charge fixation of date of hearing etc is to be followed. Most of these issues are followed in ADR also but in an informal manner. The place of equity in law is very important and equity came to supplement the common law, not to substitute it equity, which is basically based on natural justices has no place where express provision are laid down in the statute.2 2 So the ordinary court of law has no thing to do on the basis of equity where there is express provision of law. But in ADR there is always scope to apply equity. 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 11

Ishrat Azim Ahmad and Md. Ershadul Bari, principle of Civil litigation: Bangladesh Perspective- 1st ed

(Dhaka: Law Lycem, 2006). p. 219. 22

Abdur Rahman and other v Sultan others 35 DLR (1983), DLR, 51. p.53.

parties. It provides greater opportunities to structure mutually beneficial settlements it tends to have a creative and mutually compensatory quality to the parties alluring for both substance and nuance in way that even bilateral negotiation between law years could not do. Let alone litigation with it’s in lose out come. The preservation or enhancement of relationship whether of a personal or businesses nature as compared with the irrevocable escalation of mutual antagonism that so commonly epitomizes traditional litigation with its language of conflict and conformation.

Chapter 3 DIFFERENT FORMS OF ADR 3.1 Classification of ADR Basically there are two categories of ADR that are practiced in the world today. They are (a) community based ADR (b) court annexed ADR. 3.2 Community Based ADR As the title gives impression the community based ADR is practiced at community level where elder religious leaders or other community figures help parties to resolve conflict. In this indo - Pak sub continent the terms Panchayat. 3.2.1 The Traditional System The informal dispute resolution process or Salish as practiced in rural society of Bangladesh is more accessible to the poorest members of the society. The term Salish is derived from the Arabic word Salish meaning three it conveys the sense middle middleman the third party helper in conflict resolution. The term means resolution of disputes by third party neutral. It has some dis-similarities with mediation in western sense. The term mediation stems form the Latin word mediatus meaning middle. Fazlul Huq has maintains that western mediation is taking to Salish in conception but differs in context and application from the later.33 It is very difficult to specify the period during which Salish system started in this region. Nevertheless some researcher holds, certain local government bodies to govern the villages were the basic forums of government till 64 century B.C or ever before and the Panchayet and headman seem to be having prevalent that time. 84 As part of its several types of duty 33 44

Kudral-E-Elahi Painr v Bangladesh 44 (1992) DLR (AD). p. 319 Farmanul Islam ‘Towards a brief history of Alternative Dispute Resolution in Rural Bangladesh’

Bangladesh Journal Law. Vol. 4 No 1 & 2, (Dhaka: August 2000), p. 99.

Panchayet used to do Shalish. The decisions of Panchayet were regarded as binding even long before the establishment regular court system.

It was a council of five or more

members. The heads of the family community chiefs or village elders would act as the Panchayet. Dr Priya Nath Sen claims the existence of dispute resolution by the head of respective clan; guild or neighborhood in the village level was prevalent from the time of Dharmashatras. As regards to the procedure and the nature of proceedings these institutions were very much similar to the ADR procedures simple. Informal inexpensive and quick and the decisions were based not on abstract notion of justice but on the prevalent norms of expected behavior. There is no debate about the existence of Panchayat system in the northern and Southern part of ancient India but existence of Panchayat in eastern ancient India is a debatable question23. But there is some concrete evidence of the existence of Panchayat system among the Muslim people of Dhaka is found popularly known as the committee of Panchayat birader committee of five respected trusted and obeyed elder brother. Although the main function of the Panchayat was to maintain the local governance of the village. It was quite active in dispute resolution. As MP Jain observed 'these Panchayet fulfilled the judicial function very effectively and it is only rarely that their decisions gave dissatisfaction to the village people. The members of the Panchayet were deterred from committing an in justice by fear of public opinion. In whose midst they lived. The litigants and witnesses also could not lightly tell lies for in a small community very usually the affairs of one were known to others. To some extent the Panchayet resembled a formal judicial authority because it could intervene on the complaint of one party and not necessarily on the agreement of both. But in many occasions decision would be based on agreement between the parties. However it did not get integrated into the new system not was it reinforced institutionally under the new system26. Apart from this process some other informal justice delivery system is prevalent in Bangladesh from time immemorial such as village Shalish under the leadership of village

Matabbar27. In this system local elders of the locality do Shalish but there is no permanent and organized body like Panchayet. 3.2.2 NGO Sponsored ADR System Although the informal dispute resolution process or Shalish as practiced in rural society of Bangladesh is more accessible to the poorest member of the society. Still it is largely characterized by lack of transparency and accountability. Unfortunately the village Shalish system reflects the elite or dominate version of justice rather then disadvantaged segments to reflect their notions of justice. Therefore if it is not reasonably and carefully used it may itself become an instrument to continue inequitable notions of justice and medieval religious practices. In the context of this worst situation and the state inability to ensure speedy justice a number of non governmental organization gradually proceed to diminish the scope for inequitable Shalish process by the powerful elite and advocates for in erasing access to justice through an equitable process pro people. A number of non-governmental organizations namely Madaripur Legal Aid Association (MLAA), Bachte Shekha, Bangladesh Legal Aid and Services Trust (BLAST), Ain Shalish Cendra (ASK) etc. have been arranging mediation of dispute in several part of the country. The oldest of these Madaripur legal aid associations (MLAA) has been facilitation mediation as its primary activity for almost two decades now. 3.3 Court Annexed ADR If rule of law aims to establish justice in society. Courts should be considered the best of all human institutions to achieve this goal courts are managed by men who have to follow definite procedure. So the quality of courts performance depends on how they are managed by the men who are responsible for their Administration. Efficient administration of justice and sound management of courts must therefore be recognized as essential conditions for establishing rule of law. Law is an instrument of social progress to implement the intention of the legislature to achieve this objective. The machinery of courts would obviously need adaptation to certain new mechanism and norms for ensuring justice.55 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 time of parties, improve 55

F.K.M.A. Munim, â&#x20AC;&#x2DC;Administration of Courts in Bangladeshâ&#x20AC;&#x2122;, Journal of the Institute of Law and

International Affairs. vol. VIII no. 2 (Dhaka, July 1985). p. 1.

access to justice and reduce courts caseloads, and simultaneously preservation important social relation ships of parties. For example conciliation Settlement conference Judge hosted settlement conferences etc. are Court annexed ADR. In Court sponsored ADR system basically three ADR options are used such as mediation, Non-binding arbitration and judge hosted judicial settlement or settlement conference. In case of court annexed ADR basically mediation and judicial settlement mechanisms are used. Judicial settlement or settlement conference may be characterized as an exclusively court annexed ADR because a court can refer a case for this purpose only to another court. The most important mechanism of court sponsored ADR is mediation. 3.4 Hybrid ADR Models 3.4.1 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 out side 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. 3.4.2 Early Neutral Evaluation (ENE) A court based ADR process applied to civil cases. ENE brings parties and their lawyers together early in the pretrial phase to present summaries of their cases and receive a nonbinding assessment by an experienced neutral senior lawyer with expertise in the sub stance of the dispute or in some country by a magistrate. The evaluator may also provide case planning evidence and settlement assistance in some country. It is until purely as a settlement device and resembles evaluative mediation. In this model a neutral professional who has legal or other expertise hears a summary of each parry's case and gives a possible accession with an intention and hope that the parties will not move to the court of law.66 3.4.3 Settlement Conference In this court based ADR process the settlement judge preside over a meeting of the parties in an effort to help them reach a settlement. Judges have played a variety of roles in such conferences articulating opinions about the merits of the case facilitating the trading of 66

SK. Golam Mahbub Alternative dispute resolution (ADR) in commercial disputes the UK and Bangladesh Perspective. 1st ed (Dhaka; Sk Golam Mahmud: 2005) p.29

settlement offers and sometimes acting as a mediator this is the most common from of ADR used in us federal and state courts.77 3.4.4 Mediation Arbitration An example of insult step ADR parties agree to mediate their dispute with the understanding tat any issues not settled by mediation will be resolved by arbitration using the same individual to act as both mediator and arbitrator. Having the same individuals act in both roles. However may have a chilling effete on the parties participating fully in mediation. They might believe that the arbitrator will not be able to set aside unfavorable information learned during the perceivably mediation. Additional related methods have evolved to address this problem. 3.4.5 Court Based Mini Trial A similar procedure generally reserved for large disputes. In which a judge magistrate or nonjudicial neutral presides over a one- or two day hearing like that described above. If negotiations fail the parties proceed to trial. 3.5 Basic ADR Models The basic models of ADR are those models, which are very common to use and includes negotiation conciliation arbitrations and mediation. 3.5.1 Negotiation Negotiation is the process where by interested parties resolve disputes agree upon courses of action bargain for individual or collective advantage and or attempt to craft out comes which serve their mutual interests. The dictionary meaning of 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 party or from the court. In this process the parties to dispute control the whale process and find out the solution. 882 3.5.2 Conciliation Conciliation is another common form of dispute resolution. In this process a third party meets separately with the disputant in an effort to establish a mutual under standing of the 77

Anser Ali Khan, An Introduction to Alternative Dispute Resolution (ADR) 1st ed (Dhaka: Hira Publication, 2007). p.2 8

BADC v Kibria Associates Ltd. 46 DLR (AD). p. 97.

underlying case of the dispute and there by promote pacific settlement a successful consolation in the advocacy approach is when the negotiator is able to obtain allow most of the out comes his party desires. But without driving the other party to permanently break off negotiations. Traditional negotiating is sometimes called win-lose be cause of the hardball style of the negotiators whose motive is to get as much as they can for their side. But presently practitioners and researchers began to develop win-win approaches to negotiation. 3.5.3 Mediation Mediation is the activity is which a neutral third party. The mediator Assistor more parties in order to help them achieve an agreement with concrete effects on a matter of common interest. 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 mutually 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 89 A of the code of civil procedure (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 dispute in the suit between the parties without directing or dictating the terms of such compromise. During the Middle Ages mediation has been differently considered. Sometimes for bidden or its practice has been restricted to centralized authorities. In some cultures it was instead a seared figure tribute a particular respect partly coincident with that of traditional wise man. Now-a-days it is the most grooming process applied al over the world unlike a judge or arbitrator. The mediator has no power to impose a solution on the disputants instead the mediator's role and the mediation process may very significantly. 3.5.4 Arbitration Arbitration is the law is a legal alter native to the courts where by the parties to a dispute agree to submit their respective portions (through agreement or hearing) to a neutral third party (the arbitration) for resolution. Arbitration is a term arrived from the nomenclature of the Roman law. It is applied to an arrangement for thing and abiding by the judgment of a selected person in some dispute matter instead of carrying it to the established court of justice. Arbitration has been defined in the following terms. "Arbitration is the reference of dispute or difference between not less than two parties for determination after hearing both sides in a judicial manner by a person or other than a court of competent jurisdiction.

Arbitration is an adjudicator dispute resolution processes in which one or more Arbitratorâ&#x20AC;&#x2122;s issues a judgment on the merits after an expedited adversarial. Hearing in which each party 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.99 Arbitration is procedurally less formal than court adjudication procedural rules and substantive law may be set the parties. Arbitration commences when one party gives notice to another for appointment of arbitrator.10 Before 2001 in Bangladesh there were two Acts i.e. the arbitration Act 1937 ad the arbitration Act 1940 by which the whole affairs of arbitration were regulated in 2001. a new Act i.e. the Salish Ain 2001 (Act. No. 1 of 2001) was enacted and section 59 of this Act repeated the arbitration 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. Arbitration being not a court under the code of civil procedure is not subordinate to the high court division and as such no contempt proceedings can be drawn against the opposite parties. Objection against award if any shall have to be filed within 30 days of the filling of the award in court as prescribed by article 158 of the limitation act. This is mandatory and is well settle. When an award is made a decree 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.1510

Chapter 4 ACCESS TO JUSTICE 4.1 What is Access to Justice Access to "Justiceâ&#x20AC;? means any one who is in problem easily can take the assistance of law in settling the contentious issue or issues. Access to justice raises usage of both a formal and substantive kind consistently with the focus on procedural justice. However lawyers tend to define "Access to justice" in terms of equal access to the formal institutions and processes of the law. According to the Australian Law Reform commission Access to justice can only ever mean in brood institutional and system i.e. terms, relative by equitable access to the process". 99 1010

Government of East Pakistan v Sarwar Ali Biswas (1968) 20 DLR (H/C). p. 727. Mizanur Rahman Khan and another v. Jinnatul Ferdous and Another 5 MLR (H/C). p. 24.

Concern about a "crisis of confidence" in relation to that process led to the establishment of an access to justice advisory committee by the Federal government in 1993. The concept of access to Justice encompasses the whole range of laws. Procedures institutional arrangements, through which Justice cancel delivered to the people in efficient and effective manner. It denotes the instrumentalities by which citizens can approach courts. There are Lawyers, legislature, Judges, Administrative agencies for addressing both substantive and procedural justice. Access to justice is recognized as on of the fundamental tenets of rule of law, democracy and human rights. The right to access to justice is an important derivative of right to equality before the guaranteed under the constitution of Bangladesh. But, access to Justice remains hollow promise to the vast majority of people of Bangladesh for many reasons prohibitive cost of litigation. Back logging of cases. Complex procedural rules are few if not exhaustive causes. Which remain obstacles to Access to Justice. Access to Justice Should e interpreted more broadly than mere formal representation before the courts and obtaining legal remedies it should also include the ability of the people to obtain legal assistance. To ability to reach law makes. Law enforcing agencies are participation effectively in the legal system through formal means of litigation and informal means of alternative dispute resolution. Access to justice in adversarial system is restricted by many factors. Given the growing Dissatisfaction of people with both the process and out comes of civil litigation. Alternative dispute Resolution is increasingly recognized as one of the instrumentalities to facilitate access to Justice.

4.2 Right to Accessible Justice The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury it is a general and indisputable rule,

that where there is a legal right, there is also a legal remedy by suit or action at law whenever that right is invaded the government of the United Status has been emphatically termed a government of laws, and not of men. We will certainly case to deserve this high application, if the laws furnish no remedy for the violation of a vested legal right. So said by U.S, Supreme Court in Marbury V. Madison, (5 US 137, 163, 1803) case, it is not only true for United States but also true for each and every democratic country of the world. Without an accessible Justice system it is impossible for every one to obtain remedy against the violation of a vested legal right. In any state, access to justice is considered a most coveted aspiration and is regarded as vital component of human rights, which seeks to establish a just society based on rule of law and democratic values. There is no denying that unintelligible procedure, prohibitive cost of litigation and inordinate delay has combined to make our justice system alienated from vest majority of people. Our legal system theoretically ensure access to justice for each and every citizen of the country but in practice the door of justice is not open for disadvantages segment

the

society.

In our adversarial legal system, poverty, inordinate delay high cost of litigation, lack of legal aid mechanism and unavailability of alternative of formal Justice delivery system are considered the roadblocks in the way of access to justice. In order to have access to justice, a person must know about his rights and the remedies for the wrong done to him as well as the forum for obtaining that remedy. For example let us think about a train available for free ride. Now in order to avail such a free ride one has to know which train has been made available for a free ride, and from where and when such train is available and accordingly, if one can reach such a train in time, then only he can enjoy the Tree ride, otherwise the availability of such a free ride is meaningless. Similarly poverty-ridden persons in our country are, normally, not aware about their rights and for that matter about the relief(s) they are entitled to and this is due to lack of education, a result of poverty and even if such persons are made aware about their rights and the forum from which they are entitled to gel relief, yet because of financial constraints they cannot enter even the gate of justice. According to article 15 of the constitution of the people republic of Bangladesh it shall be a fundamental responsibility of the state to attain, through economic growth, a constant increase of productive forces and steady improvement in the material and cultural standard of living of the people, with a view to securing to its citizens the provision of the basic necessities of life, including food, clothing, shelter, education and medical care. But due to

vicious circle of poverty, even after 32 years of independence these goals are yet to be achieved. 4.3 Access to Justice and Bangladesh Constitution Constitution of the People's Republic of Bangladesh recognizes access justice as a fundamental right of every citizen, which confirms that the Republic shall be a democracy in which fundamental human rights and freedoms and respect for the dignity and worth of human person shall be guaranteed, and ensures equality of opportunity to all citizens and that every person in the service of the Republic is duty bound to strive at all times to serve the people of the country, and that all citizens are equal before law and are entitled to equal protection of law; and it also ensures that the right 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 and no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law, and that, subject to any restriction imposed by any law, every citizen shall have the right to acquire, hold, transfer or otherwise dispose of property; and that every citizen shall have right to enter upon any lawful profession or occupation, trade or occupation, subject to restrictions imposed by law; and that the right to move the High Court Division of the Supreme Court of Bangladesh

its

original writ jurisdiction under Article 102 of the Constitution for the enforcement of the fundamental rights is guaranteed by Article 44 of the Constitution. Constitutional provision of equality before law and equal protection of law is the gateway of equal access to justice. In case of civil justice system the Code of Civil Procedure, 1908 is the main procedural law for approaching; court of law for justice. Theoretically access to court of law is open to all but in practice it is hardly possible for a large number of people to reach the divine hand of justice. In most of the case access to justice is only available to the resourceful person and powerful elite, in order to have access to justice one must have the means, which includes money. Some provisions of this declaration are directly relevant with the right to access to civil justice system those are as follows. Article I. Ad human kings are horn free and equal in dignity and rights. They are endowed with reason and conscience and should act towards .one another in a .spirit of brotherhood. Article 2: Every-one is entitled to nil the rights and freedoms set fort in this Declaration, without distinction of any kind, such as race, color, sex, language, religion, political or

other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictions! or international status of the country or territory to which a person belongs, whether it be independent, trust, non-selfgoverning or under any other limitation of sovereignty 4.4 Access to Justice and International Human Rights Law Access to justice is one of the basic human Rights under international human rights law. On December 10, 1948 the General Assembly of the United Nations adopted and proclaimed the universal Declaration of Human Right. Some provisions of this declaration are directly relevant with the right to access to civil justice system those are as under: Article 1 Ad human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.1111 Article 2: Every-one is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictions or international status of the country or territory to which a person belongs, whether it is independent, trust, non-self-governing or under any other limitation of sovereignty. Article 6 Everyone has the right to recognition everywhere as a person before the law. Article 7 All are equal before the law and are entitled without any discrimination to

equal

protection

of the law.

All

ate

entitled to equal protection against any

discrimination in violation of this Declaration and against any incitement to such discrimination. Article 8 Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law. Access to justice for all will ensure legal empowerment and as a by product, legal empowerment contributes to good governance poverty eradication and other development goals.

Chapter 5 1111

Mill Rahman, The Role of the judiciary in Developing Society: Main Training A Balance in Law and International Affairs; Journal of the institute of law and international Affairs vol. II no. 1 & 2 (Dhaka, June 1988) p.2

VITAL PROBLEMS 5.1 Can our Existing Civil Justice System Ensure Access to justice Our legal system theoretically ensure access to justice for each and every citizen of the county but in practice the door of justice is not open for disadvantaged segment of the society. National and International law impose obligation to the state to establish a legal system accessible to each and every member of society but in reality fulfillment of this obligation is yet to be a far reaching goal. In our adversarial legal system, poverty, inordinate delay high cost of litigation, lack of legal aid mechanism and unavailability of alternative of formal Justice delivery system are considered the roadblocks in the way of access to justice. 5.1.1 Problem our Civil Justice System Our judicial and legal system has been historically nourished in the rich tradition of common law, and it can boast a long record of good delivery of justice. Like any other legal system, common law with its adversarial or accusatorial features, has its merits and demerits. But in recent years certain objective and subjective factors have so combined as to lead our judiciary to a situation where its demerits are overpowering the merits. Manifesting is crippling backlogs and delays. Delayed justice reduces even the winner of the litigation, for its costs in terms of time, money; every human emotion is too high. The reasons for delays in the functioning of our civil justice system are both systemic and subjective. They may be identified as follows: 1. Common law oriented adversarial or accusatorial character of the civil process as against inquisitorial as practiced in continental Europe, meaning that the litigation is a party controlled which provides wide maneuvering power to the lawyers and presupposes lesser initiative and relative passivity of the judges. 2. Slow process of service of summons, which can be further slowed down by the intentions of the parties concerned indicating poor state of court administration. 3. Too much reliance on the resort to interim injunctive relief and orders, leaning the hearing of the 'main contentions and issue to 'infinity'. 4. Frequent adjournments pf of the trial caused by the insistence of the lawyers, and reluctance of the judges to limit these adjournments, such reluctance being explained partly by heave case-load and partly be their unprepared ness to continue and complete the process.

5. Vested interest of the lawyers for lengthening and delaying the process, for they are often paid by their appearances in the court. 6. Commonly made interlocutory orders and appeals which fracture the case into many parts and effectively stay the trail. 7. Scope for frequent amendments of the plaints and written statements at any stage of trial. 8. Reluctance of the judges, accentuated by their statutory non-compulsion, to use preexisting rules and orders to expediter the trial, or to sanction the parties for failing to follow the procedural requirements, meaning that the judges do not take initiative to employ procedural power of their rule making power to achieve procedural effectiveness. 9. Absence of lawyer-client accountability giving the lawyer monopoly power to conduct the case the way he considers best suited to his own interest. 10. 10. 10.Little scope for client-client interaction, which hides potential for alternative, dispute resolution and intensifies confliction nature of proceedings.

5.2 How ADR Can Take Role as a means to Access Justice Use of formal court system requires resources unavailable to sector of the population formal court system are biased against women minorities or other groups; illiteracy prevents part of the population from using formal court system. Distance from the courts impairs effective use for rural population. ADR can be effectively successful in some cases where ordinary court of law cannot even take a decision. Those are as follows. 5.2.1 Pacific Settlement Any dispute settled by any for of ADR ends dispute harmony. Both the parties remain happy in such resolution. There exist a 'win-win' situation in ADR, which is opposed to 'win-loss' situation in ordinary litigation. Again there is a possibility that an access on being proved guilty may attempt to commit further crises in order to traumatize the victim thus a vicious cycle is created. ADR relieves such tension and thereby reduces conflict in a society. 5.2.2Reducing the Formality of the Legal Process Several studies indicate that the formality of Court systems intimidates and discourages use in Bangladesh. The court requirement of legal representation is both costly and intimidating

for people who may not be comfortable interacting with lawyers form a different class ADR can play vital role to overcome this problem. 5.2.3 Counteracting Discrimination and Bias in the System When courts are systematically biased against particular group such as minorities or women ADR program can sometimes help provide some measure of justice. In Bangladesh the courts often poorly protect women. Some NGOs sponsored ADR program take special initiative in this regard as the MLAA mediation program has procreative women to serve on mediation panels in the village mediation program. Women who have used the system believe that they receive better protection and more compensation from this system than from the formal court system. 5.2.4 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 curt of law the court has to follow many formalities has to hear every concerned party. Witnesses and verify necessary documents. Thus a case may run for more than 50 years. In ADR not too many formalities are to be followed so in a sitting, by using ADR it is not impossible to more than one case. 5.2.5 Overcoming the Berried of Illiteracy In Bangladesh access to justice is effective by denied because the formal system requires a level of literacy that many in the county do not have and the formal legal processes are especially intimidating for large numbers of illiterate citizens. ADR programs' can be designed to rely on oral representations. Oral agreements may be enforced by traditional means of community poor pressure eliminating the need for written documentation or formal enforcement mechanisms. 5.2.6 Cheap Process Moving in ordinary court of law is valued 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 has to roll from table to table. The parties to the suit have to spend nominal money since ADR follows informal procedure. ADR saves money and thus help people of varying strata of the society to get remedy. 5.2.7 Access to Justice

Constitutions of most of the countries provide for the peoples 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 created access to Justice for such disadvantaged group who would not get justice in ordinary court of law. 5.2.8 Assistance or Ordinary Legal System All over the world the ordinary courts of law are facing terrible problems due to unlimited number of cases. This is simply immaterial whether the court is of developing or poor or developed countries. Day be day the states are trying to provide their 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. 5.2.9 Effective Remedy Sometimes ADR can award effective remedy in comparison with the remedy provides by the ordinary law of the land. We have inherited our legal system from our British rulers and in most cases thee laws may not be effective. Hence ADR operates as an alternative and efficacious remedy for the aggrieved.

5.2.10 Privacy 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 under pins human dignity and other key values such as freedom of Associations and freedom of speech ........privacy is a basic human right and the reasonable expectation of every person.

Chapter 6 CONCLUSION 6.1 Recommendations The key to success of ADR (alternative Dispute Resolution) in Bangladesh lives in the manner of its introduction. ADR is no longer an unheard of concept of dispute resolution among Judges Litigants and lawyers of Bangladesh. The Family courts all over Bangladesh are actively engaged in ADR. The mediation output of all the Assistant judges, taken together, is something to be proud of. The Ministry law needs to collect to collect, maintain

and update all relevant statistics in this regard. Before we extend the frontiers of ADR to other types of litigation, we would suggest the following: i. Amend the code of Civil Procedure giving the trial court an enabling and discretionary power to refer a case or part of case for only mediation or non-binding arbitration at any stage of the suit. Although the proper stage to do so is after receiving the writing the written statement, we would suggest at any stage of the suit to cover backlogs. When the amendment comes in the force, the judges will be trained to refer a case for mediation or non-will be further trained to refer pending cases for mediation or non-binding arbitration when both parties agree or according to the judge's own define mediation and non-binding arbitration correctly and precisely in the amendment to avoid unnecessary dispute about their nature and character ii. As pointed out in section 89A dealing with mediation, it is to great extent, the discretion of the Court that may open the gate of mediation process.

Hence the

discretion on the part of the Judges should be exercised vice judiciously and meticulously taking into consideration the nature and fact of the case concerned. iii. It is required to define mediation and non-binding arbitration more precisely and exhaustively to avoid unnecessary impasse about their nature and application. iv. It will provide a new and fresh solution to the ailing problem of delays in the court. The present delay in disposal of the eases is mounting in a geometrical proportion and likely to create a crisis of confidence and therefore,

it requires

a resolute

determination and strong will to introduce the court Sponsored ADR in the Bangladesh legal system, at the beginning of twenty-first century. The task is not easy but not impossible. In, USA it took 20 years to gradually introduce and develop ADR as a comprehensive court system. v. The District judge will keep a constant eye on ADR progress and provide the Ministry of Law with regular up-to-dale information about the rules of disposal by mediation by the court under his control; amount realized each month by the court, pending mediation in the court, comparison in terms of disposal and realization of money with rate of disposal and rate of money prior to mediation. vi. Before introducing ADR in any other field intensive training if concerned judges, lawyers and the court staff is a must. The framing will be on a continuous basis and JATI should have an instructor on its pay roll to impart training on different methods of ADR to different tiers of trainee judges, including new entrants to the

judicial Service. A batch to trainers should be created to take up this arduous job in all the districts. vii. Labor courts and Small Cause are the two areas where mediation should be introduced immediately on a priority basis, amending two special legislation's. viii.

The people of Bangladesh are hungry for justice. It is for us, the legal and

judicial community, to this public need in a well though out disciplined and organized manner. Our success will depend upon the way we motivate and dedicate us. ix. Reasonable fees of mediator must be ensured so that he pan conducts the mediation without any habitation. If the reasonable lees are ensured then the mediator conduct can be fulfilled properly. x. There must be a mutual consent and intention of the parties to resolve the mediation. xi. Both of he parties must have sacrificing mentality. Then it will be lays to settlement the dispute. 6.2 Concluding words Every society has problems and no legal system can be perfect. It is the same in one country. But continuing struggle to improve the legal system and relentless effort to adapt it to the modem changing circumstances is the sign of progressive society. In our adversarial legal system, poverty, inordinate delay high cost of litigation, lack of life aid mechanism and unavailability of alternative of formal Justice delivery system are considered the roadblocks in the way of access to justice. ADR is becoming a popular way of solving problems. Some times people went to court with some trifling matter. It is just a waste of the time of the court and an abuse of the judicial process; creating a backlog of case over burdening our courts. If the parties try to solve matter in the ADR manner it will save time, money and unnecessary tension of the people and state. Arbitration is a parallel and complementary was of solving dispute with the court, not a substitution. If arbitration fails to give relief or the parties fail to come to a definite point the parties can go to the court. The door of the court is always open. But one gels effective way of solving problem out of court, why not take that chance. And the system like ADR will be very much helpful to achieve that purpose.

References Books 1.

Anser Ali Khan, An Introduction to Alternative Dispute Resolution (ADR), 1st ed. (Dhaka: Hira Publication, 2007). p. 2

Ishrat Azim Ahmad and Md. Ershadul Bari, Principle of Civil Litigation: Bangladesh Perspective, 1st ed (Dhaka; law lycem, Center for law, Justice and Peace Dhaka 2006). p. 219

SK. Golam Mahmud, Alternative dispute resolution (ADR) in commercial disputes the UK and Bangladesh Perspective, 1st ed (Dhaka; Sk Golam Mahmud: 2005). p. 29

Cases 1.

Abdur Rahman and other v Sultan others. 35 (1983), DLR, 51. p. 53

Kudral-E-Elahi Painr v Bangladesh 44 (1992) DLR (AD). p. 319

BADC v Kibria Associates Ltd. 46 DLR (AD). p. 97

Government of East Pakistan v Sarwar Ali Biswas (1968) 20 DLR (H/C). p. 727

Mizanur Rahman Khan and another v. Jinnatul Ferdous and Another 5 MLR (H/C). p. 24

Journals 1.

Farmanul Islam, ‘Towards a brief history of Alternative Dispute Resolution in Rural Bangladesh, Bangladesh Journal Law. Vol. 4 No 1 & 2, (Dhaka: 2000). p. 99

F.K.M.A. Munim, ‘Administration of Courts in Bangladesh’, Law and international Affairs Journal of the institute of Law and international Affairs. vol. VIII no. 2 (Dhaka, July 1985). p. 1