Law Alter Views
Introduction of ADR in criminal cases
Dr Jamila A Chowdhury
Ahuge backlog and delay in the disposal of cases, and consequent high-cost of litigation limits access to formal justice for the poor and disadvantaged in Bangladesh. According to a statistics from Transparency International, Bangladesh, we have only 77 Supreme Court justices, and 750 other judges to dispense justice to a population of nearly 150 million. This scarcity of judges is a contributing factor to the ever-increasing number of unresolved cases. For example, in 2006, only 148,563 cases were disposed of from a total of 617,059 cases placed before the district courts of Bangladesh and therefore, 468,496 cases pending for disposal at the end of the year. As a means to get rid of this backlog, Alternative Dispute Resolution (ADR) is often acclaimed for providing low-cost, quick access to justice. Unlike litigation ADR, more particularly mediation, is an informal dispute resolution process where parties can negotiate to settle disputes and determine outcomes which are mutually beneficial to them.
There are various types of ADR depending on their nature and objectives. For example, in some cases parties negotiate themselves without any help from third party while in other cases a third party may interfere and try to settle the dispute for mutual benefit of the parties. Amongst different forms of ADR, mediation is the most widely used ADR mechanism in Bangladesh. Outcomes of disputes settled through ADR may vary from outcomes suggested in respective laws. For example, though every Muslim woman is entitled under Muslim law to claim all of her unpaid dower on divorce, to avoid delay and uncertainties in recovery, a divorcee woman in family court ADR may give up a part of her unpaid dower but claim for a cash payment on settlement. As parties settle for a mutually agreed outcome, ADR ensures permanent settlement without a possibility of appeal. Early disposal also reduces cost to resolve disputes.
Therefore, a part of the claim may be sacrificed in ADR to ensure quick realization. To exploit such benefits, an active practice of ADR with some reformed agendas was first introduced in few pilot family courts of Bangladesh in 2000. Within few years of its reformed initiation, success of ADR was observed through a significant reduction of case backlog in family courts and a simultaneous increase in the realization of decree money by women. Realizing its potentials as a low-cost, quick dispute resolution mechanism, ADR has been introduced in various other civil courts of Bangladesh including Labour Courts, Money Loans Recovery Courts, Income Tax Tribunals, Village Courts, and Municipality Conciliation Boards.
However, one problem to practice ADR is that the 'quality' of outcome mostly depends on the negotiation capacity of parties attending ADR. For example, in our society still the image of an ideal woman is depicted as diffident, non-aggressive, and minimalist i.e. satisfied with minimum rights, and willing to sacrifice most of her rights to attain harmony. On the other hand, an ideal man is represented as valiant, conscious about maximum rights, and having power to gain command and control. This kind of social ideology creates 'power' differential between men and women that affects their negotiation capacity while attending ADR. Similar types of power disparity may also exist between other groups of the society like employers and employees, contractors and day labourers, village money lenders and borrowers, and social oppressors and oppressed. Therefore, to safeguard the interest of comparatively weaker parties in ADR, one or more unbiased and non-partisan third party hear the dispute and try to attain a settlement between parties that would ensure a fair outcome for both of them. For example, in resolving family disputes through ADR, family court judges act as an unbiased third party between a husband and a wife. As observed in one of my earlier research, while conducting ADR, family court judges not only try to settle disputes but also promote women to express their views. Third party mediators may interfere when husbands try to restrain women from expressing their views. Similar practices were also observed among third parties resolving disputes in different NGOs like MLLA, BLAST and BRAC.
However, there is no assurance that third parties will always be unbiased and non-partisan while performing their function. For example, village shalish is a century long institution in this sub-continent where one or more respected and elderly persons hear a dispute to dispense justice at the local level. However, shalish has lost its glory as the composition of the people administering shalish has mostly changed from respected elderly people to politically motivated local leaders. Because of their strong political ties, along with the influence of their money and political affiliation, newly emerged leaders superseded the traditional respect towards the age, reputation and lineage of the elderly leaders who prefer to uphold moral conduct rather than narrow political and personal interests.
The problem of maintaining unbiased position for third parties conducting ADR is not unique to Bangladesh rather is similar to the problem faced by many other countries using ADR. Therefore, different countries adopted various standards of ADR including the qualities of a third party, steps to be followed in conducting ADR, rights of parties attending ADR, responsibilities of a third party conducting ADR, and so on. However, despite the active practice of ADR in formal courts of Bangladesh for more than one decade, its development is mostly limited to some 'quantitative' aspects like quick disposal of cases and quick realization of decree money.
While conducting one of my recent studies on the quality of family court ADR in Bangladesh, I found virtually no literature that discussed comprehensively about the quality of ADR in Bangladesh. Further, various laws that deals with court connected ADR are at their primitive stage and are not comprehensive enough to address various qualitative factors. For example, the Family Court Ordinance discusses ADR minutely in two tiny sections.
Although the latest amendment of the Civil Procedure Code (CPC) included a detailed discussion on ADR, still such discussion is mostly limited to the process of conducting ADR and not much have been discussed about the duties and liabilities of a third party conducting ADR, and rights of disputing parties attending ADR. Similar trends can be observed in other laws admitting court connected ADR in Bangladesh. While court connected ADR lacks meticulous guidelines, out-of-court ADR conducted by NGOs remained totally out of the purview of any laws or regulations on ADR. Pertinently, though many of the developing countries including our neighbouring country India and China have detailed laws to control and regulate the quality of both in-court and out-of-court ADR, unfortunately, we are still running with a great vacuum in this regard. Therefore, despite the fact that some of the family court judges and other renowned NGOs are doing well in ensuring fair justice through ADR, lack of necessary regulations always poses a risk that such good practices on ADR may not be replicated in every corner of our society. While we are in the formative stage of adopting ADR in civil cases, one recent issue getting much attention from policy makers is whether we may introduce ADR in resolving criminal cases as well.
The writer is Assistant Professor of Law, University of Dhaka.