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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 186
April 16, 2005

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Union Parishad in dispute resolution

Anisur Rahman

One of the old traditions of the Indian Subcontinent is to settle disputes by the elder and learned members of the society through negotiation or conciliation. The panchayat system consists of local elder persons had been existed in the rural area since from the Mughal period. All petty disputes of the locality were dissolved by the panchayat then. In Bangladesh though we have no panchayat system, such type of dispute resolution outside the court is a common phenomenon in the rural area. It is shalishi (mediation). Petty disputes whether civil or criminal in nature have been resolved through shalishi. Sometimes grave criminal offences are also resolved through the shalishi to avoid long period of adjudication in the court.

We have the three hundred years old Union Parishad (UP) as a lowest tier of the administrative unit. From the British period this local administrative tier has been played a significant role in rural development. It performs some judicial functions too. Besides the regular tasks, chairman of the Union Parishad has to conduct many shalishi. But absence of recognition and lack of manpower hinders UPs to play an effective role in dispute settlement. As a result shalishi takes place frequently in the villages, which sometimes leads to misinterpretation of law, i.e. fatwa.


The informal dispute settlement
Shalishi is one kind of mediation where one or more than one persons were nominated by the disputant parties to assist them (disputant parties) to reach in an agreed settlement. The nominated person/persons entrusted to make a settlement of the dispute are called 'Shalish' and the meeting is called 'Shalishi'. It is very informal social meeting where the invited person/persons hear the disputant parties very carefully and try to chalk out the main issues of the dispute. They assist the disputant parties to sort their problem out themselves. The shalish gives its efforts to bring the disputant parties close to the settlement instead of pronouncing their judgement/own views. There have no formal proceedings in the shalishi. The disputant parties disclose their causes of dispute orally before the shalish. Sometimes they submit documents to substantiate their claim. Generally there arise no question of witnesses but the shalish may hear the witnesses in some cases to determine the core issues. The witnesses are never examined. There is also no advocate to proceed the matter in dispute. After determining the issues of the dispute the shalish gives some outline for the disputant parties to reach in an agreed settlement.

What type of cases could be dealt by Shalish?
Generally disputes relating to property, family matter i.e. distribution of property, dissolution of marriage, maintenance, guardianship could be dealt by shalish. 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, 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.

New avenue for settlement of dispute
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,

It will also not solve the problem of backlog of cases in the court. One will have to wait for the date of hearing of the case to inform the court about their intention of mediation and this kind of mediation does not give any relief to the disputant parties since they will have to bear the fees of the mediator. Here the advocate or any other person may be hired for mediation.

Role of the Union Parishad
The Union Parishad does not have significant role in conducting shalishi except forming an Arbitration Council under the Muslim Family Laws Ordinance 1961 to deal with dissolution of marriage and polygamy. However, chairman of the Union Parishad is used to conduct shalishi personally within his Union. Union Parishad is not recognised as an institution for alternative dispute settlement. The Local Government (Union Parishad) Ordinance 1983 also does not provide any role for the Union Parishad to conduct shalishi. The Union Parishad has been conducting trial of some petty offences under the Village Court Ordinance 1976.

But this is not shalishi. Though the procedure of the Village Court is very informal it is being treated like a court. It has power to issue summon to the witnesses to present in the Court or to summon someone to produce some documents required by the court which is inconsistent with the concept of shalishi. It is not the trial of any offence. Here the invited person/persons try to help the disputant parties to agree on a settlement. They act like mediator between the parties. The shalish never judge the guilt of one party nor do they pronounce their own judgement/views. On the other hand village court is constituted after receiving an application from someone to form a court to try the guilt of another person. It usually pronounces its own judgement and if one person is found guilty it may order the perpetrator to compensate the victim.

What could be done?
It is the fundamental right of every citizen to get steady justice. But this constitutional guarantee becomes a farce due to the backlog of cases in the court. Besides, it is very hard for the poor to afford the necessary court expenses to take recourse to the court. Here the UP could play an effective role. Since UP is the nearest institution of the people it can play the key role to resolve dispute through shalishi. Mitigation of local dispute through the UP will reduce the overburden of cases in the courts. Now a days many non-governmental human rights organisations extend their hands to resolve the disputes through mediation. But none is for Union Parishad, the age-old people's organisation to make it as a centre for alternative dispute resolution. The Union Parishad could be the best alternative which will ensure the right to justice of the common people. Is there any meaning of right to justice without 'access to justice'?

The author is a legal analyst and an advocate.


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