Law book review
Understanding Alternative Dispute Resolution
Dr. Abdullah Al Faruque
Barrister Abdul Halim
ADR in Bangladesh: Issues and Challenges
CCB Foundation, Dhaka, 2010, Pages. 331
Price- TK. 200 only
ADR (Alternative Dispute Resolution) is known to be an instrument for easy and speedy access to justice throughout the modern world because it resolves disputes quickly with win-win feelings; it is cost effective and reduces burden on the courts and workload of the judges as well as it reduces backlog of pending cases. In ADR, parties can control the process and design solutions that meet their needs, while not necessarily adhering to technical legal principles, procedure of evidence and witness. It is against this background that ADR is increasingly becoming popular dispute settlement mechanism in many legal systems. Much has been written on ADR system. But Halim's “ADR in Bangladesh: Issues and Challenges”-- a well researched and insightful book is a most welcome addition to the growing literature on the subject. The book starts with the discussion of linkage between access to justice and ADR and then it provides a conceptual and comprehensive analysis of different types of ADR mechanisms, presents an account of historical development and goals of ADR.
The author mentions that ADR becomes imperative when a country's judicial system is flooded with unmanageable pending cases in the context of its limited number of judges, inadequate judge-population ratio, insufficient budget allocation for the judiciary and lack of infrastructure in the legal system. The author appropriately highlights that given the fact that most of the developed and developing countries have gained tremendous success in reducing pending cases by adopting ADR, Bangladesh should find and try ways and means to develop ADR modes in the same fashion. The most significant contribution of the book to existing literature is contained in its analysis of the pre-conditions of success of ADR, limitation of the ADR mechanisms and challenges of effective functioning of ADR in Bangladesh. The book also focuses on formal ADR systems in different statutes of Bangladesh and deals with evaluation and outcome of each of the formal ADR systems.
The book has been conveniently divided into two parts. Part A contains fifteen chapters with the substantive analysis of the ADR system, while part B deals with annexure of different legislation and model forms on ADR in Bangladesh. Chapter one and two describe theoretical, philosophical and conceptual basis of ADR. Chapter three and four respectively provide history of formal and informal ADR in Bangladesh and various aspects, objects and modes of ADR mechanism. In Chapter four the author has attempted to analyse that how ADR is an effective mechanism for upholding the ethical issues and social values.
Chapter five examines the limitation of ADR and identifies certain types of disputes where ADR can be proved as an ineffective and inappropriate dispute settlement mechanism. Chapter six extends the concept of Chapter one, that is, the need of ADR in the context of Bangladesh, its introduction in Bangladesh recently in the field of civil law and challenges of ADR ahead. Chapter seven to Chapter eleven respectively deals with provisions and role of ADR in Code of Civil Procedure, Artharin Adalat Ain, 2003, the Labour Code, 2006, Muslim Family Law and Family Courts. The author identifies the loopholes in the provisions and accordingly suggests some recommendations regarding improvement of ADR system in Bangladesh.
Chapter twelve specifically deals with the traditional age-old rural system of justice dispensation system popularly known as Shalish, its history, merits, demerits and usefulness in the context of present days. While discussing this traditional system, the author has largely focused on the experience of Madaripur Legal Aid Association (MLAA) and its effective role in reforming NGO-modified Shalish that has been quite successful in resolving disputes.
Chapter thirteen contains an elaborate discussion on village court system, its structure and function as well as the legal provisions regarding village court system. This chapter also highlights the defects of this system and makes recommendations for improvement of village court. Subsequently detailed information of the Conciliation Board has been provided in Chapter fourteen such as its formation, its power and function and the process of filing and resolving cases in the Board. In both chapters the author evaluates whether village court or Board of Conciliation is a forum of ADR or not.
Part A of the book ends with Chapter fifteen by discussing the role of ADR mechanism in criminal cases and emphasizing the introduction of the concept of 'plea bargaining'. Although the provisions of 'plea bargaining' have already been introduced in neighbouring countries like India and Pakistan, the author suggests ways and means of introducing plea bargaining in Bangladesh in the context of huge number of pending cases in criminal courts.
The author of the book Md. Abdul Halim is a Barrister-at-Law and practicing advocate in the Supreme Court of Bangladesh. He has extensive publications on constitutionalism and legal system of Bangladesh to his credits. Most of the arguments in the book are presented with great authority and perceptive insight that comes from his long experience of legal practice.
The book is well written, well structured, exhaustive and informative. The clarity of exposition of different aspects of ADR and recommendations contained in the book will be useful for future legal reform in the field of ADR. This book contains a wealth of references and will undoubtedly prove a valuable resource for students, academics, lawyers and judges alike.
The book reviewer is an Associate Professor, Department of Law, Chittagong University.