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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: 284
August 25, 2012

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The inexorableness and essence
of informal justice system

Md. Shajahan Ali

The euphoria of informal justice bears a great significance within the matrix of justice system especially to the poor or disadvantaged people. In general, Informal justice systems are repeatedly complementary easily reached to poor and disadvantaged people and may boast the prospective to bequeath with fast, loathsome and culturally germane remedies. Furthermore, in post-conflict societies, people possibly will use traditional and informal justice systems not only for the reason that these systems go one better than formal ones but also because they often deal with issues that the formal justice system does not, or they find solutions and transport remedies in ways that are more relevant, effective or acceptable in a social context. Informal justice systems are ubiquitous in right through the world, especially in developing countries. Typically they are the keystone of dispute resolution as well as access to justice intended for the majority of populations, especially the poor and disadvantaged in scores of developed and developing countries, where informal justice systems by and large resolve between 80 and 90 percent of disputes. In a study of formal and informal dispute resolution systems amongst poor segments of rural Colombia, the incidence of communities taking matters into their own hands through vigilantism, mob justice or lynching is more than five times greater in communities where informal mechanisms are no longer running successfully and state attendance leftovers inadequate.

The idea of justice is an old concept which mostly derived from the primitive age when people thought for the first time to form a group to a society instead of the vagabond lives. Needless to say that, a society is the abridgment of a variety of social customs, norms and values which address the people in chain. More specifically the concept of justice is derived from the thought of Plato to Aquinas to Hobbes, ensuing the social contract theory of Lock's. If we sketch the history of the rituals adept in Greek, Roman, Arab, and Babylonian civilizations, it will focus the existence of restorative justice. Braithwaite (1989) outlined an official theoretical model for restorative justice that was built on a tribal form of justice that existed for hundreds of years. It should be noted that this model is sometimes used in Western democracies, commonly called formalrational systems (Garland, 1990; Roth and Wittich, 1968; Whitman, 2003 cited in Morris and Trammell, 2011). According to Bernard Schwartz (1962) in England with a view to not having any written constitutional peg on which to hang the decisions of the judges enforcing at least ensuring the demands of fair procedure has instead had to rely upon the ethico-legal concept of natural justice. Moreover, there are further examples of the practice of restorative justice rituals or informal justice practice in Christianism, Hinduism, Buddhism as well as Islamism.

Needless to say that informal justice system is the corner stone of formal justice system. At present the formal system of justice is the outcomes of customary or traditional justice system. In other word the formal system has been originated from the moderation of traditional justice. It is imperative to say that in Malawi between 80 and 90% of all disputes are processed through customary justice forums; in Bangladesh an estimated 60-70% of local disputes are solved through the Salish, in Sierra Leone, approximately 85% of the population falls under the jurisdiction of customary law, defined under the Constitution as 'the rules of law, which, by custom, are applicable to particular communities in Sierra Leone'; Customary tenure covers 75% of land in most African countries, affecting 90% of land transactions in countries like Mozambique and Ghana; There are estimates claiming that up to 80% of Burundians take their cases to the Bashingantahe institution as a first or sometimes only instance.

Moreover, there are diverse contours of informal justice system exist in the world such as Shalish in Bangladesh, Katarungang Pambarangay or Barangay justice system in Philippines, Uganda's Local Council Courts (LCCs), Gacaca-the traditional dispute resolution mechanism of Rwanda, East Timor's Commission for Reception, Truth and Reconciliation drew heavily on informal dispute resolution structures, The customary court system in Botswana, The Rondas Campesinas in Peru, in Tanzania's Serengeti region, representatives of sungusungu groups (local neighbourhood watches), in Nepal informal justice popular forms are Anjuman, Tamudhi, Maijan dewam, and Pancha bhaladmi, Majlish-e-Shura or Jirga in Afghanistan, Street committees which is called the neighborhood dispute resolution forums in the United States of America more specifically community boards in San Francisco, The People's mediation courts of China, lynching in a variety of countries in Latin America: Argentina, Brazil, Bolivia, Ecuador, Guatemala, Honduras and Mexico, The “Street Committees” And “People's Courts” in South Africa, Kastom in Vanuatu, religious courts of Kenya, The traditional authorities of Mozambique, traditional courts of Zambia and Ghana, the “Sabonesi Gari” Forums in Nigeria, and The traditional Panchayet systems and Lok adalat in India etc. Besides the Community courts of Mozambique, the local council courts of Uganda, the local courts of Zambia, Juntas Vecinales of Bolivia, justice of the peace courts of Guatemala where all these systems have been shaped or sanctioned by means of the state and are frequently incorporated into the formal justice system but apply customary norms.

The bucolic and non-bucolic poor encompass a propensity to rotate to informal systems for the rationale that they are handier culturally, financially along with geographically than the formal justice system. That is why they knob issues of key concern such as land, property, and family matters. They be relevant procedures and outcomes based on reconciliation, restoration as well as reparation with the intention of being accustomed to local community norms and notions of fair dealing.

In Bangladesh there are three forms of shalish e.g. traditional shalish, government administered Shalish and Non Government Organisations (NGO) led shalish or mediation. It is imperative to say that numerous NGOs in Bangladesh vigorously working for the amelioration of gender justice as well as all over the world, specifically these organisations build on traditional, consensus-based mediation, legal awareness building programmes and adjusts human rights standards of fairness, equality and nondiscrimination to the realities of local communities. Functionally the paralegal as well as the other members who are betrothed in these activities are trained in law, human rights, mediation techniques and also concern about the customary law.

It is imperative to say that the inexorableness of informal justice can never be disregarded in the justice system of a country. In order to attain the meaningful spreading out of informal justice system that facilitates in revitalizing the justice system of the countries should be exercised in the light of modern methodology taking into account the state laws, social customs and traditions as well.


The writer is a research assistant at DELTA BAY and a post-graduate in Public Administration.




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