The role of Alternative Dispute resolution (ADR) Towards Access to justice

লিখেছেন লিখেছেন আ্য়ূব ৩০ নভেম্বর, ২০১৩, ১২:২৪:৪৫ দুপুর

OBJECTIVES OF THE RESEARCH MONOGRAPH

This monograph seeks to deal with the manner in which Bangladesh have attempted to institutionalize methods of dispute resolution, alternative to the adversarial System, The specific objectives of the study can be spelled out as follows:

1. to highlight legal frame work of ADR,

2. to examine the performance of ADR,

3. to explore and clarify the potential uses of and benefits ADR and the

conditions under which it can succeed.

4. to identify the limitation of ADR programme

5. to offer suggestions for improving the effectiveness of this system.

6. to identify prospects and problems of application of ADR.

7. to justify its necessity in our administration of civil justice.

METHODOLOGY

The Research Monograph is not a basic one, it is library-based monograph. This

Study is based on information contained in articles on the on the subject,

newspaper, reports, Publication of concerned organization, research monograph are-

• Collection of materials with help of concerned teacher, Mostafa Mahmud Naser, Assistant professor, Department of Law, University of Chittagong.

• Collection of materials from the related website.

• Preparation of the monograph.

• Revision of the monograph and

• Type and printed in computer and binding as the rule of examination.

CHAPTER-1

INTRODUCTION

All citizens are equal before law and are entitled to equal protection of law. This is not a mere a commitment of the constitution, but also a justifiable fundamental right guaranteed in the constitution. Here two things are ensured- first one is ‘equality before law’ and secondly ‘equal protection of law’. Whereas the second right is meaningless without the first one, the first is bound to remain laudatory discourse or marginally effective for a fortunate few or more unequally realizing the causes of a few powerful at the cost of many helpless people, if the second right cannot be effectively ensured, If a man cannot avail equal protection of law by reason of poor Economic condition or deprived of it because of bias, political or others, what is the use of ensuring equality before law? Access to the court depends upon some conditions: first, the payment of necessary court fees; second, other incidental costs like collection of documents, copying, and fees for the bar association, presence of witnesses, conveyances; third, payment of lawyer with a view to properly presenting the case to the court; forth, the regular communication into the court. Administration of civil justice in

Bangladesh is embedded with various problems and is unsuited to the genius of

our people. Delay in disposal of cases and execution of decrees, excessive cost bar the poor people of our country to have access to justice. Although evaluation of the

working of our civil justice system till to date revels that none of the requirements

are presents in the administration of civil justice which are badly needed to ensure justice. In this situation people try to resolve their differences through different way and this is a unique process, is called Alternative dispute resolution simply ADR.

CHAPTER-2

FAULTS AND PROBLEMS OF CIVIL LITIGATION IN BANGLADESH:

The civil justice system has a lot of faults that are not suitable for judiciary. These problems have Weakened our judiciary. The litigants have to face obstacles. And, they are not interested to settle their disputes in court. The faults and problems have been depicted below.High cost: High cost is one of the problems that our litigants have to face. It is not suitable for efficient administration of civil justice. Justice must be cheap and at the capacity of the litigants. Cost of litigation is the total amount of expenditure of litigation from beginning to end.The cost of litigation is very high now. Because of high cost of litigation, it creates many problems. They are- Social pressure. Psychological pressure Environmental cause.

Social pressure:

Our society is not a modern society. Their psychology is no more modern. As a result, when one goes to court for establishing one rights, he has to suffer. One goes to the court for remedy at the eleventh hour. Litigation jam, partiality of

judges, and insecurity of the parties are there. So, strict social pressure is upon the court system.

• Psychological pressure:

now-a-days one is always in anxiety about the result of the litigation. Litigating parties pass the days in an uncertainty about the litigation. It creates psychological pressure upon the litigating parties.

Environmental pressure:

court’s constitution from top to bottom is against fair justice will be fair. Appointment of judge is not fair too.

Delay: Delay is against the term of speedy trial. Speedy trial means to finish a case within a reasonable time. Delay hinders the speedy trial of cases. The ‘causes of delay have been given below.

Reasons within the Code of Civil procedure:

There are some reasons inside the Civil Procedure Code, which cause delay. Reasons for delay within the Code of Civil procedure are as follows.Delay in the filing of plaint.

I. Delay in the issuance of summons.

II. Return and rejection of plaint.

III. Delay in the submission of written statement.

IV. Amendment of the pleadings by the parties.

V. Non-attendance of witnesses and creates delay in the case.

VI. Non-appearance of parties within due date.

VII. Delay in the framing of issues and interlocutory matters.

VIII. Non-observance of the provisions relating to discovery, filing of

IX. Interrogatories and inspection and it delay the process of trial.

X. Delay in writing and delivering judgment.

XI. Delay in the execution of decree, which prolongs the settlement of suit.

2) Reasons outside the Code of Civil Procedure:

There are some important reasons

for delay outside the Code of Civil Procedure. They are pointed out below.

• Judicial officers are insufficient in number

• Absence of efficient lawyers and judges.

• Working condition is unsatisfactory.

• Accommodation problem.

• Non-availability of legal aid.

So, these are the mentionable causes, which are responsible for delay in the civil justice system of Bangladesh. Delay hampers the purpose of justice. Delay is the

root cause behind all deadlocks.

Miscellaneous reasons:

Times of courts are whimsically killed by the filing of

multifarious frivolous and vexatious petitions to linger the duration of litigation. In this way, the problems obstruct the whole civil justice system. So we can understand from above discussion that the faults and problems are hampering our civil litigation system.We have to eradicate the faults and problems in order to create congenial atmosphere in civil justice system. If we cannot take the required steps, our problems will be enlarged, and the problems will finally postpone the judicial mechanism.So we see the faults and problems in our civil justice system. We have to identify

the faults and problems. These faults and problems should be cured for the sake of effective and efficient judicial system.

CHAPTER:3

WHAT IS ADR?

Alternative dispute resolution is general term, used to define a set of approaches

And techniques aimed at resolving disputes in a non-confrontational. It covers a board Spectrum approach from party engagement in negotiations as the most direct way to reach a mutually accepted resolution, to adjudication at the other end, where an external party imposes a solution.¹

ADR, Some times also called “Appropriate dispute resolution’’ is often used to Describe a wide variety of dispute resolution mechanisms that are short of, or alternative to full-scale court process. The term can refer to everything from facilitated settlement negotiations in, Which disputants are encouraged to negotiate directly with each other prior

To some other legal process, to arbitration or mini trials that look and feel very much likes Courtroom process. Process designed to manage community tension or facilitate Community development issues can also be include within the rubric of ADR² The term`Alternative’’ dispute resolution carries to meanings. In its’ wider sense, it Can include arbitration also because arbitration constitutes an alternative to litigation.However, in its narrow sense, it excludes arbitration (as well as litigation), because (like litigation) Arbitration also contemplates an imposed decision. In the narrower sense, it Excludes arbitration (as well as litigation), because (like litigation) arbitration also Contemplates an imposed decision. Finally arrived at, is with the consent of the parties

‘Amicable settlement, appears to be an appropriate word to denote modes of dispute Resolution in, which the parties retain their freedom to decide the outcome of their dispute. It could cover negotiation, mediation and conciliation (and some of their variation combinations or Sophisticated forms) The conciliator or mediator does not himself decide the dispute. He facilitates its resolution and helps the parties In identifying the common ground that so far elude the parties.

CHAPTER:4

CLASSIFICATION OF ADR:

The various ADR system now well recognized are:

Negotiation A non-binding procedure involving direct interaction of the disputing parties Where in a party approaches the other with the offer of a negotiated settlement based on an Objective assessment of each other’ position. A trade-off of other interests not involved in the dispute is not uncommon in a negotiated settlement. Objectivity and willingness to arrive at a negotiated settlement on the part of both the parties are essential characteristics of negotiation.

Mediation/Conciliation :

A non-binding procedure in which a neutral third party assists the disputing parties in mutually reaching an agreed settlement of the dispute. Mediation and conciliation are inter-changeable expressions. In both the procedures a successful completion of the proceedings results in a mutually agreed settlement of dispute between the parties though, in some jurisdictions, mediation is treated as distinct from conciliation in as much as in mediation the emphasis is on more positive role of the neutral third party than in conciliation. However, this factor should not make mediation distinct from conciliation because the scope of the role that a mutual third party can play depends on the nature of the dispute, the degree of willingness of the parties and the skill of the individual neutrals.

Mediation Arbitration : A procedure where the parties agree to settle their dispute first by attempting a conciliation within a specified tine, failing which by arbitration. This is distinct from conciliation in the course of arbitral proceedings where, if a settlement is reached, the arbitration proceedings are terminated by making an award on agreed terms.

Mini-trial : A non binding procedure where the disputing parties present their

respective cases before their senior executives who are competent to take decisions and who are assisted by a neutral third party. Thus, the executives have an objective assessment of the dispute and, if possible, they can mutually arrive at an amicable settlement.Arbitration : A binding procedure where the dispute is submitted for adjudication by an arbitral tribunal consisting of a sole or an odd number of arbitrators, which

gives its decision in the form of an award that finally settles the dispute and is binding on the parties.

CHAPTER:5

Historical Background of ADR

The issue ADR is not a new phenomenon or modern origin rather it is long rooted in the history. The three main monotheistic of Judaism, Christianity, and Islam played significant roles to dissolve dispute among their followers. 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 don’t agree, they shall state their case in the Forum before noon, They shall plead together in person. After noon, let the judge pronounce. If both are present, the case shall end at sunset.’’ People of different groups like Bushmen of the Kalahari,5 Hawaiian islanders of Polynesian, Kpelle of Central Liberia, Abkhazian of the Caucasus Mountains of Georgia of former Soviet Union, Yoruba of Nigeria used their tradition instruments to dissolve their disputes, which have similarities with modern ADR. ADR. Was practiced in ancient China and Greece. In Indian sub-continent, there was a system of panchayat, where arbitrator, called a Punjab decided any issue in dispute and he was respected in such a way that nobody even tried to disobey his decision. This method, since independent of a formal Court system, may be biased, expensive, distant, or otherwise inaccessible to a population. Arbitration was also practiced in ancient Spain, Korea and Ireland.6

CHAPTER :6

OBJECT OF ADR:

The primary object of ADR Movement is avoidance of vexation, expense and delay and promotion of the ideal of ‘access to justice’ for all. In other words, the ADR system seeks to provide cheap, simple, quick and accessible justice. Courts of most of the countries are suffering from huge caseloads. ADR system can be instrumental to settle disputes between parties.7‘In most of the developing societies law 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.’’8 The civil justice system of Bangladesh has failed to administer justice in a timely manner. The adversarial model which 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 ruler forms of local dispute resolution, which involve 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.9 ‘’Under the traditional litigation system, where the procedure starts with the filing of a complaint, petition or plaint, administration of justice has some practical limitations like cumbersome 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.

number of cases pending before the courts are constantly on the increase. Because of these factors 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 existing in our country since long.’’10 Role of ADR in Making Civil Justice System Accessible to All

From above discussion it is evident we have to introduce alternative dispute resolution system for several identifiable cause, which has been described in ‘alternative Dispute Resolution practitioner Guide’’ published by CENTER FOR DEMOCRACY AND GOVERNANCE, U.S.A.11 some of those are below. 1)

ADR can support and complement court reform. Case backlog impairs court effectiveness. Complex procedures impair court effectiveness. Illiterate or poor cannot afford the courts or manage their way within them. Small informal systems can better reach geographically dispersed population. 2) ADR can increase satisfaction of disputants with outcomes: High cost, long delay, and limited access undermine satisfaction with existing judicial Processes. Cultural norms emphasize the importance of reconciliation and relationships over “winning” in dispute resolution. Considerations of equity indicate that creativity and flexibility are ceded to produce outcomes satisfactory to the parties. Low rates of compliance with court judgments (or a high rate of enforcement actions) indicate a need for systems that maximize the likelihood of voluntary compliance. The legal system is not very responsive to local conditions or local conditions vary. (3) ADR programs can increase access to justice for disadvantaged groups.Use of formal court systems requires resources unavailable to sectors of the population Formal court systems are biased against women, minorities, or other groups. Illiteracy prevents part of the population from using formal court systems. Distance from the courts impairs effective use for rural populations.a. Reducing the cost to parties Many poor are denied access simply because they cannot afford to pay the registration and representation fees necessary to enter the formal legal system. ince cost is probably the largest barrier to formal dispute resolution for many people in developing countries, that issue is addressed separately in part 6) below.b. Reducing 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 from a different class. ADR can play vital role to overcome this problem.c. Overcoming the barrier of illiteracy In Bangladesh, access to justice is effectively denied because the formal system requires a level of literacy that many in the country 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 peer pressure, eliminating the need for written documentation or formal enforcement mechanisms. d. Counteracting discrimination and bias in the system: When courts are systematically biased against particular groups, such as minorities or women, ADR programs can sometimes help provide some measure of justice. In Bangladesh the courts often poorly protect women. Some NGO sponsored ADR program take special initiative in this regard such as the MLAA Mediation program has recruited women to serve on mediation panels in thevillage 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.4) ADR programs can reduce delay in the resolution of disputes: Delays are caused by complex formal procedures. Court resources are insufficient to keep up with case backlog. Inordinate delay is one of the basic problems of formal legal system. ADR can play a vital role to reduce the delay.5) ADR cans by-pass ineffective or discredited courts:

Working with or within the existing judicial system is unlikely to be effective or receive popular support. Complex or technical disputes can be handled more effectively by specialized private ADR system a. Justice for populations not well served by the courts ADR programs can by-pass corrupt, biased, or otherwise discredited court systems that could not provide reasonable justice for at least certain parts of the population. But this is not true in case of court sponsored ADR.b. Efficient and satisfactory resolution in highly technical, specialized areas: Specialized ADR programs focused on particular types of technical or complex disputes can be more effective and produce better settlements than courts. In the United States, specialized ADR programs deal with construction, environmental, and patent disputes, among others. These programs act as substitutes for the courts, which may not have the expertise necessary to make the best decisions. c. Ethnically based, public and family disputes ADR programs may also be more effective than courts for addressing particular types of disputes, such as ethnic conflicts, public environmental disputes, or family disputes. In such cases, specifically designed ADR programs may create more attractive alternatives to the courts even when the courts are functioning reasonably well. National government agencies may develop issue-specific ADR systems designed to precede or parallel formal administrative hearings. 6) ADR programs can reduce the cost of resolving disputes:High costs in the courts are driven by formal procedures or the requirement of legal Representation. Court filing costs are high. Court delays impose high costs on parties. ADR programs seem to be successful in reducing the cost of dispute resolution and providing access to justice for the poor. The primary reason for the difference in cost was the simplicity of the system and the lack of need for legal representation, compared with the extreme complexity of the formal court system and the requirement of expensive representation.

CHAPTER:7

CHARACTERISTICS OF ADR:

Though different forms of ADR have different characteristics but there are some

common features of ADR, Which are described below:1. Informality:Informality is the most fundamental characteristic of ADR Like ordinary Court of law, in ADR there are absence of many formalities. For example, in courts of law many formalities like court fee, suit valuation, stamp, appointment of lawyers, framing issues of charge, fixation of date of hearing etc. are to be followed. Most of these issues are followed in ADR also but in an informal manner.2) Application of Equity

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

justice, has no place where express provisions are laid down in the statute.11 So, the ordinary Court of law has nothing to do on the basis of equity where there is

express provision of law. But in ADR there is always scope to apply equity.

3) Direct Participation and Communication between Parties:

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 parties, potentially higher levels of confidentiality since public records are not typically kept, more flexibility in designing creative settlements, less power to subpoena information, and less direct power of enforcement

CHAPTER:8

ADVANTAGES OF ADR

Because of some proven all over the world and the importance of ADR is increasingly felt. ADR can be effectively successful in some cases where ordinary Court of law cannot even take a decision. The advantages of ADR are discussed below-

Pacific Settlement:

Any dispute settled by any form of ADR ends with harmony. Both the parties remain happy in such resolution. There exists a ‘win-win’ situation in ADR, which is opposed to ‘win-loss’ situation in ordinary litigation.

Again, there is a possibility that an accused on being proved guilty may

attempt to commit further crimes in order to traumatize the victim thus a

vicious cycle is created. ADR relieves such tension and thereby reduces conflict in a society.

1) Informal Procedure:

Less informal procedures are followed in ADR and for people like those of Bangladesh where most of them are illiterate and do not understand formal procedure of the Court of law, this informal procedure of ADR will operate to their advantage.

2) 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 court of

law the court has to follow many formalities, has to hear every concerned parties, with nesses and verify necessary documents. Thus, a case may run for more than 50 years 11. 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. Cheap Process:Moving ordinary Court of law involve huge amount of money. Initially, the Court fee is to be paid to start a suit, and then there is fee of the lawyer to defend the case, then to collect the certified copies of the judgement or order or decree, the parties to the suit have to count enough money. Since ADR follows

informal procedure, ADR saves money and thus help people of varying strata of the society to get remedy. Assistance to Ordinary Legal System:All over the world, the ordinary Court 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 by 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.

6) 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 underpins human dignity and other key values such as freedom of association and freedom of speech … Privacy is a basic human right and the reasonable expectation of every person.13 In countries like Bangladesh, people do not still take the issue of going to the Court easily. It is a common mistaken perception that good people do not go to the Court. Even if anybody has to go to the Court for whatever reason he feels that it will create embarrassing consequences for him. In ADR since only the parties and their representatives remain present,

strict privacy is tried to maintain under all circumstances.

7) Effective Remedy:

Sometimes ADR can award effective remedy in comparison with the remedy provided by the ordinary law of the land. We have inherited our legal system from our British rulers, and in most cases those laws may not be effective. Hence, ADR operates as an alternative and efficacious remedy for the aggrieved:After considering all such advantages of ADR, Chief Justice K.M. Hassan thus observed:

The Greatest achievement of the mediation Courts is changing of mental attitudes of the judges, lawyers, litigants and general public who were skeptical about mediation. Initially, there feelings of opposition and suspicion by some in the legal profession for this entirely differently based discipline but it is changing. Those who used to come to the Court with a confrontational mood are accepting the idea of mediation and more are coming prepared to settle dispute through mediation. It is interesting to note that the same lawyers who fight tooth and nail to win a suit in trial also try hard to find out solution through mediation.14

CHAPTER:9

DISADVANTAGES OF ADR

1. The longer time tram for litigation may be advantageous to one of the parties if it will have to make a payment to the other party once the dispute is resolved, passage of time naturally decreases both the cost to the defendant and the value of the plaintiff’s recovery

2. The use of discovery in litigation allows each party to obtain valuable information from the other party.

3. The rule of law generally governs the dispute; if the law is on one party’s side. The case is more likely to be decided in that party’s favor.

4. Only the courts can establish precedent. If a party has concern about future cases as well as the present controversy. Litigation may establish the needed precedent.

5. Litigation is generally preferred if the case involves new or complex legal theories.

6. Litigation is more public and thus may be used to let other parties know disputes will not be settled for their nuisance value.15

CHAPTER10:

Provisions of ADR in statute law

There are many laws where there are scopes for the parties to settle dispute by

using ADR. They are discussed below:

1. Contract Act, 1872

Section 28 of the Contract Act, 1872 (Act No. IX of 1872)16 While dealing with the agreements in restraint of legal proceedings provides that every agreement by which any party thereto is restricted absolutely from enforcing his rights under or respect of any contract by the usual legal proceedings in the ordinary tribunals or which limits the time within which he may thus enforce his right is void.Exception 1 to this section provides that this section shall not render illegal a contract by which two or more persons agree that any dispute which may arise between them in respect of any subject or class of subjects shall be referred to arbitration, and that only the amount awarded in such arbitration shall be recoverable in respect of that dispute so referred. Exception 2 provides that section 28 shall not render any contract in writing illegal by which two or more persons agree to refer to arbitration. Any question between them, which have already arisen or affect any provision of any law in force for the time being as to references to arbitration.

2. The Specific Relief Act, 1877

Section 21 of the Specific Relief Act, 1877 (Act No. 1 of 1877)17 while dealing with the contracts which are not specifically enforceable provides that if in any

contract, it is provided that in case of any dispute the contract is referred to Arbitration, the contract cannot be specifically enforced.3) The Code of Civil procedure, 1908 (Act NO. v of 1908)Incorporation of provisions relating to ADR is a groundbreaking step taken by the Government of Bangladesh. In 2003, two provisions i.e. section 89A and 89B18 were incorporated in the Code of Civil Procedure, 1908 and very recently in 2006, a new provision i.e. section 89C19 was incorporated. The Muslim Family Laws Ordinance, 1961:The Muslim Family Laws Ordinance, 1961(Ordinance No.VIII of 1961)20 contains a provision of Arbitration Council, which is a body consisting of the Chairman and a representative of each of the parties to a matter dealt with in this Ordinance.21 The provisions of the Arbitration Act, 194022 the Code of Civil Procedure, 1908 and any other law regulating the procedure of Courts shall not apply to any such Arbitration Council.23 The Ordinance also provides that no man, during the subsistence of an existing marriage, shall, except with the previous permission in writing of the Arbitration Council, contract another marriage, nor shall any such marriage contracted without such permission be registered under the Muslim Marriages and Divorces (Registration) Act, 1974 (Act No. LIII of 1974)24 The Ordinance also contains provisions relating to Arbitration council in sections 7 and 9.5: The Industrial Relations Ordinance, 1969 The Industrial Relations Ordinance, 1969 (Ordinance No. XXIII of 1969)25 Contains detail provisions on conciliation, arbitration, negotiation and mediation to be applied for the settlement of industrial dispute.

6: The Family Courts Ordinance, 1985 Under section 5 of the Family Courts Ordinance, 1985 (Ordinance No.XVIII of1985)26 it is provided that the Family Courts have the jurisdiction to try five types of cases i.e. dissolution of marriage, dower, maintenance, custody and guardianship, restitution of conjugal rights. The provisions of this said Ordinance extends to the whole of Bangladesh except the districts of R angamati Hill Tract, Bandarban Hill Tract and Khagrachari Hill Tract.27 The Family Court is the right forum for the disposal of abovementioned five types of cases for people of all religion.28 Most of the judges of the Family Courts initially try to settle any of the five types of cases by ADR. At the pre-trial hearing the Court tries to make a compromise or reconciliation between the parties.29 If it fails, then the Court goes for the proceedings. After the trial and before the pronouncement of judgment the Court again tries to make a compromise or reconciliation between the parties.30 If the Court fails to make a compromise between parties, it pronounces its judgment.

7: The Bangladesh Rin Salishi Ain, 1989 (Act No. XV of 1989)

The Bangladesh Rin Salishi Ain, 1989 (Act No. XV of 1989)31 was enacted to protect farmers from falling into indebtedness to moneylenders. The provisions of this Act extend to the whole of Bangladesh except the hill districts of Rangamati, Khagrachari and Bandarban and came into force of the 1st Baisbakb, 1389, or on the 14th April, 1982.Section 13 of the Act provides for the creation of a Debt Settlement Board in any Upazilla. Every Board shall consist of one chairman and at least two, but not more than four other members and they shall work for four years. The Board has been given authority to accept petitions under sections 6, 7,11,and 12,and executing them after a hearing. The Rin Salishi Board created under the Bangladesh Rin Salishi Ain, 1989, is a special forum for hearing applications filed by peasants against mahajans. It is created by a special law and as such the provisions of the statute should be strictly applied.32

8: The Salish Ain, 2001(Act No. 1of 2001)33

The General Assembly of the United Nations in its Resolution No. 40/72, dated

December 11, 1985, recommended that all States give due consideration to the

Model Law of International Arbitration, in view of the desirability or uniformity

of law of arbitral procedures and the specific needs of international commercial

practice. Like many other countries, Bangladesh enacted laws to give legal force to the United Nations Commission on International Trade Law, 1966 (UNCITRAL

Model Law) within its jurisdiction. The previous law in this field was the

Arbitration Act, 1940 (X of 1940.) Accordingly, on the basis of the UNCITRAL Model Law, in 1996, India enacted the Arbitration and Conciliation Ordinance,

1996. Similarly, the Government of Bangladesh also repealed the previous law and enacted the Salish Ain 2001 (Act No. 1 of 2001). This Act, was enacted to provide for the international commercial arbitration.

9:The Artha Rin Adalat Ain, 2003 (Act No. VIII of 2003)

The Act34 was enacted to amend and consolidate the provisions of existing laws

relating to recovery of debt by the Financial Institution. In section 2, the Act defines ‘Financial Institute’ as (a) Bangladesh Bank established under the Bangladesh Bank Order, 1972 (P.O.No. 127 of 1972)35, (b) Banks established under the Bangladesh Banks (Nationalisation) Order, 1972 (P.O. No 26 of 1972)36 (c) bank companies established or run under the provisions of the Bank Companies Act, 1991 (Act No. 14 of 1991)37 (d) House Building Finance Corporation established under the Bangladesh House Building Finance Corporation Order, 1973 (P.O. No 7 of 1973)37 (e) Investment Corporation of Bangladesh established under the Investment Corporation of Bangladesh Ordinance, 1976 (Ord. No. XL of 1976)38 (f) Bangladesh shilpa Rin Shangstha established under the Bangladesh Shilpa Rin shangstha Order, 1972 (P.O.No 128 1972)39 (g) Bangladesh shilpa Bank established under the Bangladesh shilpa Bank Order 1972 (P.O. No 129 of 1972)40 (h) Bangladesh Krishi Bank established under the Bangladesh Krishi Bank Order 1973 (P.O. No 27 of 1973)41 (i) Rajshahi Krishi Unnayan Bank established Under the Rajshahi Krishi Unnayan Bank Odinance, 1986 (Odinance No LVIII of 1986)42 (j) Bangladesh Small and Cottage industries Corporation established under the Bangladesh Small and cottage industries Corporation Act,1959 (E.P.Act XVII of 1959)43 (k) Financial Institutions established under Financial Institution Act, 1993 (Act No 27 of 1993)44 (l) International Finance corporation (IFC)45 (m) Commonwealth Development Corporation (CDC)46 (n) Islamic Development Bank (IDB)47 (O) Asian Development Bank (ADB) (P) International Bank for Reconstruction and Development (IBRD)48 (Q) International Development Association (IDA)49 and (r) any financial institute established under any law.

10: The Village Courts Act, 2006 (Act No XIX of 2006)

The Village Courts Act, 2006 (Act No XIX of 2006) Provides for the constitution of village Courts to be constituted by a Chairman and two members to be nominated, in the prescribed manner, by each of the parties to the dispute.50 The village Courts are authorized to try civil cases when the amount claimed or the price of movable property, or the value of immovable property involved does not exceed twenty five thousand taka. The village Courts are authorized to try following civil cases 51-

a) Suit for the recovery of money due on contracts, receipts or other documents.

b) Suit for the recovery of movable property, or for the value thereof.

c) Suit for the recovery of possession of immovable property within one year of dispossession.

d) Suit for compensation for wrongfully taking or damaging movable property.

e) Sit for damages by cattle trespass.

f) Suits for recovery of wages and compensation payable to agricultural labourers.

Against the decision of the village Court, under the Ordinance of 1976 52Appeal was not possible but revision to the Assistant Judge was permissible. But the

present Act of 2006 empowers the parties to the dispute to prefer an appeal to the Assistant Judge or to the Magistrate of First Class in some selective cases. 53

CHAPTER:11

The Activities of N.G.O.S:

Although the Alternative Dispute Resolution (ADR) System is not a new concept or notion, all the conium of legal and judiciary discipline already been introduced but it will be a new concept in case of implementation, because Bangladesh has not adopt such system for full fledge. But same N.G.O’s have taken up the challenger in the field. Madaripur legal aid Association (M.I.A.A), Bangladesh legal Aid and services trust (B.L.A.S.T) Caritas, Low study cell (Chittagong) has already been launching their activities of ADR. Among them the madaripur jegal Aid Association is ahead for their Activities. The Activities of MLAA is really enthusiastic on the ADR field. MLAA facilitates successful resolution of around 5,000 Disputes in three southem districts, such as Msdaripur, Sariatpur and Gopalgonj. Besides MLAA is providing taxiing to wrkers or mediators of around 30 N.G.O.S each year, from all parts of country. For last two year MLAA has undertaken a join program with Bangladesh legal aid

and services trust (BLAST) to facilitate mediation activities of BLAST in another three districts Barishal, Khulna and Sylhet. CARITAS a well established national N.G.O also started the mediation program under the development extension education services (DEEDS) through five regional offices of Chittagong, Barishal, Sylhet, Dinajpur, Khulna. All these programmer are really enthusiastic and woll help the Development of ADR in Bangladesh.The steps that has been taken by the several N.G.O’s is very much encaurigeble, thought it is inadequate. We saw earlier that many developed country already adopt the system of ADR. They already an acted new or amended the law for smooth application of ADR. Now a day in U.S.A 80% Cases are settling by the ADR. As result they could reduce the overload of the case mountain over judiciary. Not only so, but also they are trying to more develop or to well nourished the system of ADR in order to establishment of Administration of civil justice. Now this is the term of Bangladesh to take proper steps for the development of Administration of civil justice. For this purpose we can submit same suggestion that can be followed and might to be implement.

CHAPTER :12

ADR in different countries of the world :

Records of the legal system of the world as preserved by the Authorities, speak that actually informal dispute resolution has a long tradition in many of the world societies dating back to 12th century in china, India, England and America. The business world has rightly recognized the advantages that the ADR is one form or other is a right solution. It is felt that it is less costly, less adversarial and thus more conducive to the preservation of business relationship, which is of vital importance in business world. The use of ADR has grown tremendously in the international business field in recent years. Many government around the world have supported the demand for ADR as an efficacious way of handling international commercial disputes.We find that USA, UK and India have been the supporter of International commercial ADR. We will discuss the legal provisions of ADR in these countries separately.

India: India, with view to play in the promotion of rule of law as well as administration of justice in her territory, adopted very keenly both adversarial and non-adversarial approaches to settle the disputes, which is one of the important draw-back of the social process by which society based on. The concept of arbitration as an important process of ADR, a Private tribunals was well known to ancient and medieval India. Most of the local disputes were settled by kulas (assembly of the members of a clan), srenis (guild of a particular occupation and panchayat) assembly of elder and respected inhabitants of a village) The nature of proceeding of those legal inhabitants were very similar to the ADR

During the British rule in India, under the Bengal Regulation of 1772, the court in different parts of British India were empowered to refer, either with the consent of the parties or at the instance of the parties, certain suits to arbitration. The successive C.P.C enacted in 1859, 1877 and 1882, which codified the procedure of civil courts, dealt with both arbitration between parties to a suit and arbitration without the intervention of a court.

Mahatma Gandhi, the father of the nation, intended to introduce village swaraj by which the people of every village would be independent in their own Administration of justice.The Government of India has passed a legislation f Panchayti Raj, to translate the dream of the father of the nation in to a reality. Besides this, the constitution of India calls upon the state to provide free legal aid to ensure the opportunity for securing justice are not denied to any citizen by

reason of economic or other disabilities. It was in discharge of this obligation that the CILAS (committee for Implementing legal Aid Scheme) was established in 1980. The CILAS had initiated non-formal for a known as Lok Adalats. A Lok Adalat, which means people’s court is not however, a court in its accepted connotation, it is a forum where voluntary efforts aimed at bringing about settlement of disputes between the parties are made through conciliation and persuasive efforts, Lok Adalats provide speedy and inexpensive justice in both

rural and arban areas. They specially cater the needs of weaker section of the society.54

United Kingdom (UK):

The cris in civil litigation in the Uk has greatly advanced the cause of fast track arbitration and mediation. Due to heavy litigation has become enormously expensive, time consuming, ritualized and uncertain of result, the UK Judiciary

itself has taken note in particular through a spate of recent practice directions to use ADR.Since ADR first began to be widely discussed in the UK towards the end of the 1980’s, a range of organizations such as, the center for effective dispute resolution (CE DR), ADR group, Academy of Experts, Chartered Institute of Arbitrators, City Disputes Penal Mediation UK or, have been established to train mediator and to carry out commercial mediation.

The types of domestic commercial mediation are largely mirrored in International mediation. Since 1993, judges in the commercial courts (part of the high court in London) have been issuing ADR orders at an early stage some large commercial disputes. The commercial court has been identifying cases regarded as appropriate for ADR. In such cases judge may suggest the use of ADR or to make an order directing the parties to attempt ADR. If, following an ADR order, the parties fail to settle their case they must inform the court of the step taken towards ADR and why they failed.

It is shows from a study conducted by Professor Hazel Genn that out of 233 disputes 52% were settled through ADR. In the financial year 2002- 2003, ADR was used 89% to settle the financial disputes without recourse to a court hearing. The court of appeal ADR scheme, established in 1996, is a voluntary scheme in which the court invites parties to participate in mediation. If both parties agree to mediators provide their services charge. The result of this scheme is satisfactory between 1997 to 2000 38 appeal cases were mediated under this scheme.

United States of America (USA): The concept of ADR has been studied and supported since early in the 20th century. Congress past the Federal Arbitration Act in 1925 and the American Arbitration association was founded a year later-In 1970 ADR was incorporated as the part of the legal system in USA.

By the middle of the 1980, ADR was being embraced by large corporations as means to solve complicated disputes while cutting burgeoning legal costs. In 1926, the American Arbitration Association (AAA) was founded which is now one of the largest private ADR service providers in the USA. With the ADR movement come not only an increased use of arbitration but also the development and application of other ADR techniques such mediation, conciliation, facilitation, Mini-trials, summary trials expert fact finding, early neutral evaluation and variations thereof.

It is very interesting to mention that in USA, there are more than 400 local community justice centers operating throughout the US. It has been further expended to reach public and private school programs. By this programs children learn to peacefully resolve disputes occurring among the students.55

Chapter :13

How can ADR Access to Justice:

Defining Right to Access to Justice:

“The term ‘access to justice’ is most commonly used in reference to the various mechanisms by which an individual may seek legal assistance. In 1994, the commonwealth Government appointed the Access to Advisory Committee. That Committee stated that the concept of ‘access to justice’ involves three key elements:

• Equality of access to legal services-ensuring that all persons, regardless of means, have access to high quality legal services or effective dispute resolution mechanisms necessary to protect their rights and interests.

• National equity-ensuring that all persons enjoy, as nearly as possible, equal access to legal services and to legal service markets that operate consistently within the dictates of competition policy.

• Equality before the law-ensuring that all persons, regardless of race, ethnic origins, gender or disability, are entitled to equal opportunities in such fields as education, employment, use of community facilities and access to services.’’56

Ubi jus, ibi remedium this maxim is the foundation of equality before law and equal protection of law it means where there is a right, there is always a remedy. When the law gives a right or prohibits an injury, also gives a remedy, lex semper debit remedium. If a man has a right he must have a means to vindicates and maintain it, and a remedy, if he is injured in the exercise and enjoyment of it, and, indeed it is a vain thing to imagine a right without remedy, for want of right and want of remedy is reciprocal. Right without remedy is no right in true sense, if law offer a right to citizen simultaneously there must be a proper way to vindicate the right for each and every member of the society, whether he is reach or poor I like to conclude this chapter with some words from sir Leslie Scar man, in the 1974 Hamlyn Lectures he said:

“It is no longer sufficient for the law to provide a framework of freedom in which men, women and children may word out their own destinies social justice, as our society now understands the term, requires the law to be loaded in favour of the weak and exposed, to provide them with Financial and other support and with access to courts, tribunals and Other administrative agencies where their rights rights can be enforced.’’57

One of the primordial purposes of legal institutions including courts is to ensure access to justice for and to deliver justice to common people. The concept of access to justice encompasses the whole range of laws. Procedures, institutional arrangements through which justice can be delivered to the people in efficient and effective manner. It denotes the instrumentalities by which citizens can approach courts, lawyers, legislatures, judges, and administrative agencies for addressing both substantive and procedural justice. Access to justice is recognized as one of the fundamental tenets of rule of law, democracy and human rights.58 The right to access to justice is an important derivative of the right to equality before the law guaranteed under the Constitution of Bangladesh.59 But access to justice remain hollow promise to the vast majority of people of Bangladesh for many reasons. Prohibitive cost of litigation, inordinate delay, non-availability of alternatives, corruption in justice delivery, backlogging of cases, complex procedural rules are few, if not exhaustive causes, which remain obstacles to access to justice.60

Access to justice should be 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 makers., law enforcement agencies and participation effectively in the legal system through formal means of litigation and informal means of alterative dispute resolution.

Right to Accessible justice:1

“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 States has been emphatically termed a government of

laws, and not men. It will certainly cease to deserve this high appellation, if the

laws furnish no remedy for the violation of a vested legal right’’61 So said by U.S, Supreme Court in Marbury v. Madison, (5 U.S. 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 seeds 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 have combined to make our justice system alienated from vest majority of people.62 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 disadvantaged segment of the society. Though national and international law impose obligation to the state to establish 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. “The most accepted democratic concepts of equality before law and every citizen right to justice is meaningless if for reasons of poverty or lack of financial resource an individual cannot take resource to law for vindicating his lawful and reasonable rights.’’63 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 the words of justice Bhagwati (in the case of Neeraja Chaudhury Vs. State of M.P, reported in AIR 1984 (SC)1099) poverty is a curse inflicted on large masses of people by our malfunctioning socio-economic structure and it has the disastrous effect of corroding the soul and sapping the moral fiber of a human being by robbing hin of all basic human dignity and destroying in him the higher values and the finer susceptibilities which go to make up this wonderful creation of God upon earth, namely, and poverty does not mean mere inability to buy the basic necessities of life but it goes much deeper, it deprives a man of all opportunities of education and advancement and increases a thousand-fold his vulnerability to misfortunes which come to him all too often, and which he is not able to withstand on account of lack of social and material resources and that we, who have not experienced poverty and hunger, want and destitution, do talk platitudinously of freedom and liberty, but these words have no meaning for a person who has not even a square meal per day, hardly a roof over his head and scarcely one piece of cloth to cover his shame. 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 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, the only he can enjoy the free ride, otherwise the availability of such a free ride is meaningless. Similary 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 get relief, yet because of financial constraints they cannot enter even the gate of justice.64 According to article 15 of the constitution 65 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 36 years of independence these goals are yet to be achieved.Access to Justice and Bangladesh Constitution:-2 Constitution of the People’s Republic of Bangladesh recognize access to 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,66 and ensures equality of opportunity to all citizens,67 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,68 and that all citizens are equal before law and are entitled to equal protection of law,69 and it also ensures that the right to enjoy the protection of the law, and to be treated in accordance with law,70 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,71and that every citizen shall have right to enter upon any lawful profession or occupation, trade or occupation, subject to restrictions imposed by law,72 and that the right to move the High Court Division of the Supreme Court of Bangladesh in 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.73

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 a 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.74

Access to Justice and International Human Rights Law:-3

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 Rights,75 which recognizes Member States have pledged themselves to achieve, in co-operation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms. Some provisions of this declaration are directly relevant with the right to access to civil justice system those are as under :Article 1. All 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.76 Article 2. Everyone 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, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.77 Article 6. Everyone has the right to recognition everywhere as a person before the law.78

Article7. All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discriination.78 Article 8. Everyone has the right to an effective remedy the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.79 Some other provisions of the Universal Declaration of Human Rights are also relevant with right to accessible justice. “The judicial system is ideally conceived of as “blind” to power, wealth, and social status. Courts are supposed to offer a forum where the poor and powerless can stand with all others as equals before the law.”80 In reality, the justice delivery system of Bangladesh is overtly or subtly biased against the poor and powerless. Many of the Bangladeshi poor has chosen to avoid our legal systems altogether rather than face intimidation, cost and time lost in proceedings they know they cannot win. But if we take honest initiative, law can be used to help the poor and disadvantaged to exercise greater control over their lives. 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:-14

RECOMMENDATION:

The following recommendations can be considered for the better performance of alternative dispute resolution.

• As the amendment come into force, the judges will be trained to refer a case for mediation or non binding arbitration after receiving the written statement in all suitable cases.

• Make the presiding judge, a judge of co-equal jurisdiction lawyers of the local court or a court of adjacent jurisdiction of more than 10 years standing, and Private Mediation Firms, adequately staffed by either experienced ex-judges of not less then 10 years standing recommended by the District judge an approved by the Chief justice of Bangladesh as qualified for appointment as mediator or arbitrator.

• The Government is the major litigant in this country either as a plaintiff or as a defendant. Under P.O. No 142 of 1972, the Government is a necessary party in all title suite, suits for specific performance of contract and so on In most cases the Government does not make any appearance, because the Government do not find, at any rate for the time being, any interest of the Government involved in the case. Yet when the parties in dispute compromise the matter, even without mediation, the option remains for the Government to challenge the compromise at a belated stage, claiming an interest in the subject matter of litigation. The Government is thus responsible in many cases to prolong the litigation. The Government is thus responsible in many cases to prolong the litigation. To make the ADR successful, P.O. No 142 of 1972, the government does not enter appearance or after entering appearance do not file any written statement, or after fining a written statement do no contest the case, any resolution of the dispute through ADR or otherwise by the other parties to the dispute would be binding on the government.

• Labor Courts and Small Causes Court are the two areas where mediation should be introduced immediately on a priority basis, amending the two special legislations.

• In Bangladesh it should be established conciliation board in every District. The setting up of conciliation boards of experimental basis in certain area of disputes. Giving rise to claims for the recovery money not exceeding two Lac’s. Every aggrieved person, before filing a suit for the recovery of money not exceeding two Lac’s should first approach the conciliation board. The board should try to get the dispute amicably settled within three months of the service of notice on the person complained against.

• If settlement is arrived at within the period, the settlement should be reduced to writing. It should be signed by all concerned and be filed in court like a compromise If no settlement is arrived at within three months, an order should be made by the board to that effect. Such category of suits as may be considered advisable may kept out of the jurisdiction of the conciliation board.

Advocate Naim Ahmed recommended the following measures in this respect. They are:

• The government may take public- funded legal aid program. Such programs could be co-coordinated by the ministry of home affairs or the ministry of social affairs and financed by the state.

• It is the time that the bar council of Bangladesh and every bar association may initiate, organize and maintain a program for lawyers who would wish to engage themselves in this new procedures so as to make them more efficient to handle this new system.

• It is also time that their new system are made part of the syllabus of LL.B.(Pass) and LL.B (Hon’s)

• More and more private persons, lawyers, organizations and societies to pursue legal aid programs are needed. There should be governmental assistance and legislative support to help them.

So these recommendations for alternative dispute resolution can be considered for the better performance of the system .

CHAPTER :-

CONCLUSION:

Alternative dispute resolution has quietly slipped into the mainstream of legal practice over the past two decades alternative dispute resolution has become a cornucopia of processes, procedures, and resources for responding to disputes all of which supplement rather than supplant traditional approaches of conflict.

The new wave of dispute resolution theory has resulted in the emergency of a vast array of dispute resolution mechanisms. Many of these mechanisms have been adopted by the traditional adversarial court system. Even at its zenith the current form of litigation should possess features that not previously feature of conventional adversarial system. Judge in many jurisdictions should become more inquisitorial, more continental, and more managerial in relation to approach to cases before them.

Being acutely aware of the disadvantages, which traditional adversarial system offers Bangladesh choose to look forwards alternative on the basic that policy makers and those entrusted with the responsibility of improving the system have a duty to respond to this situation not to just maintain the system. The challenge to find new and enlightened methods is a realistic one today, the challenge still stands.

Law is not a static concept. The effectiveness of legal process depends upon of its ability to mould itself to the requirements to the society from time to time.

I find no reason why we should not ourselves experiment with new methods of dispute resolution. Possibility and conservation have to give way to dynamism, adaptability, and resurgence. A properly convinced alternative dispute resolution movement will ensure wide access to justice to all section of the people.81

Needless to say that in the present scenario to civil adjudicator system of Bangladesh, the alternative dispute resolution system has assumed great importance. It has become a regular feature and become a living and continuous movement public has become conscious of their tights and is going to avail alternative dispute resolution for expeditious disposal of their disputes.

So we can say that inclusion the role of alter native dispute resolution (ADR) to wards Access to justice system will generate dynamism in the civil justice system of Bangladesh. It will solve long-standing problems of our judiciary.

NOTES AND REFERENCES:

1. Yona Shamir. Alternative dispute resolition: Approaches their application P- http/ unesdoc.unesorg. Date of last accessed on 21/09/2005.

2. Alternative dispute resolution practitioners guide, March 1998.P-11.Technical publication series center for democracy and governance. Bureau of global program, field support and research, US agency for international development Washington D.C.20523-3100. http://www.worldbank.com.

3. Rao & P.C& William Shaffield (edition-1997)

4. Ahmad Azim Irat & Karim Ershadul M.D, P-219, (dition2006)

5. Ibid

6. Rahman, justic M.H; the rule of the judiciary in developing societies: Maintaining A Balance, in law and international affairs: journal of the Institute of law and international affairs Vol.11No.1&2,Dhaka, 1988,at P.2.

7. Supra 4

8. Supra 4

9. Khan Ali Anser: An Introduction to alternative dispute resolution (Edition-2007)

10. Section 2(a),the Muslim family laws ordinance ,1961(ordinance NO.V111 of 1961)

11. The arbitration act 1940 was repealed by section 59 of the Salish Ain2001 (Act NO 1 of 2001), but the provision relating to this Act of 1940 is still there.

12. Section 3(2), the Muslim family laws ordinance, 1961(Ordinance NO.Vol11 of 1961)

13. Section-6, the Muslim family laws ordinance, 1961(Ordinance NO.Vol11 of 1961)

14. Section 1 (2), the family Courts Ordinance, 1985(Ordinance NO.xviii of 1985)

15. Khoko Rishi Das V. Khoko Rainy Dasi, 50DLR, 47,at p.53.

16. Section 10, the family Courts Ordinance, 1985(Ordinance NO.xviii of 1985)

17. Section 13, the family Courts Ordinance, 1985(Ordinance NO.xviii of 1985)

18. Jabirul Islam (Md) V Chairman settlement board and assistant commissioner (land) and others 48DLR, 579.

19. For relevant sections of the act, see, annexure, part two.

20. Section 21(1) of the Artha Rin Adalat Ain, 2003(Act NO V111 of 2003)

21. Section 21(2) of the Artha Rin Adalat Ain, 2003(Act NO V111 of 2003)

22. Section 21(3) of the Artha Rin Adalat Ain, 2003(Act NO V111 of 2003)

23. Section 21(5) of the Artha Rin Aalat Ain, 2003(Act NO V111 of 2003)

24. Section 21(4) of the Artha Rin Aalat Ain, 2003(Act NO V111 of 2003)

25. Section 21(9) of the Artha Rin Aalat Ain, 2003(Act NO V111 of 2003)

26. Section 21(6) of the Artha Rin Aalat Ain, 2003(Act NO V111 of 2003)

27. Section 22(2) of the Artha Rin Aalat Ain, 2003(Act NO V111 of 2003)

28. Section 22(4) of the Artha Rin Aalat Ain, 2003(Act NO V111 of 2003)

29. Section 22(7) of the Artha Rin Aalat Ain, 2003(Act NO V111 of 2003)

30. Section 21(9) of the Artha Rin Aalat Ain, 2003(Act NO V111 of 2003)

31. Section 22(8) of the Artha Rin Aalat Ain, 2003(Act NO V111 of 2003)

32. Section 5, the village Courts Act,2006(Act NO.xix of 2006)

33. Section 6&7, the village Courts Act, 2006(Act NO.XIX of 2006)

34. The village Court Ordinance 1976(Ordinance NO.LXI 1976). [Now stands repealed]

35. Section 8. The village Courts Act, 2006(Act NO.XIX of 2006)

36. P.C. Rao, alternatives to litigation in India, P-27.

37. Internet Search on 2.8.0, the village Courts Act, 2006(Act NO.XIX of 2006)

38. ADR project, P-12 (september1, 1995)

39. Access to justice and legal Needs Project, Background, Understanding access to justice and legal needs, The reports Access to justice Roundtable: Proceeding of a Workshop, July 2002, Organization by Law and Justice Foundation of NSW, Australia available at http:// www. lawfoundation.net.au/publications/reports/ajrl.html

40. Sackville, justice Ronald, Access to justice: Assumptions and Reality Checks Access to justice land Legal Needs project, Keynote Address, Understanding access to justice and legal needs, The reports Access t justice Roundtable: Proceeding of Workshop, July 2002, Organized by law and Justice Foundation of NSW, Australia available at

http:// www. lawfoundation.net.au/publications /reports/ajr.2html

41. See, article 8 and 10 of the UDHR. Article 8 states that everyone has the right to effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law while art. 10 of the UDHR Provides that everyone is entitled full equality to a fair and public hearing by an independent and impartial tribunal.

42. Article 27 of the Constitution of Bangladesh provides that all citizens are equal before law and are entitled to equal protection of law. Similarly, article 31 provides that to enjoy the protection of the law. and to be traded in accordance with law, and only in accordance with law is the inalienable right of every citizen.

43. Procedural causes of backlog and dealy include: (i) free access for civil claimants to the courts with incentives for frivolous, party –controlled litigation processes (including initiation without cause, extension without excuse, motions without merit) (ii) discontinuity, repetition, and fragmentation of the legal processes, without early or accountable judicial interventions such as court administration and case management mechanisms; (iii) limited opportunity or incentives (especially early in the process) for consensual settlements, including limited venues for alternative dispute resolution processes such as mediation, see, Hiram E. Chodosh, Stephen A. Mayo, A.M. Ahamadi, Abhishek M. Signvi, “Indian Civill Justice System Reform: Limitation and Preservation of the Adversarial Process, “New York University Journal of International Law and Politics, Vol. 30, Numbers 1-2 , (1998). pp. 25-26.

বিষয়: বিবিধ

১৬০৬ বার পঠিত, ০ টি মন্তব্য