Alternative dispute resolution: Quest for quick and hassle-free Justice

The emergence of Bangladesh on the world map as a free and sovereign country is supposed to be of one the important political events that happened in the second half of the twentieth century.  The political process was a purely democratic development rather than a people’s revolution. A country which was part of greater India had always been ruled by the foreign invaders by the British and that was further intensified in the following years by Pakistani Army Rule. 

This country at that time was known as East Pakistan. The creation of Bangladesh was a real Herculean task to implement. But that became possible through the uncompromising, undaunted and charismatic leadership of the Father of the Nation Bangabandhu Sheikh Mujibur Rahman, who united the people of this country to fight against the Pakistani rules and at last after a bitter nine months’ war, Bangladesh became independent on 16th December 1971.

The constitution of Bangladesh guarantees equal rights to all citizens irrespective of race, religion, sex and or other considerations. The directive principals of the state policy as stated in the constitution obligate the government to provide equal opportunities and protection of law and a minimum standard of living to all citizens.

Article 27 of the Bangladesh Constitution speaks that, “All citizens are equal before law and are entitled to equal protection in law.”

Article 28(1) provides that “The state shall not discriminate any citizen on grounds of only of religion, race, cast, sex or place of birth”.

The right to life includes the safety and security of the citizens of the country. 

Bangladesh inherited a colonial legal system from British and Pakistani ruler. The early colonial British government introduces English law and polity in India. The civil military systems of east India company were imposed on the Indian people. The results were that from simple indigenous law, India came under British Law, legislation and justice. The laws and regulations were designed and framed to strengthen the political power of the British in India. 

The Judicial system in a country is the system of law courts, that administer justice and constitute the judicial branch of the government. It is one of the three branches of the government, the other two being the executive branch and the legislative branch. The Judiciary is the system of courts that interprets and applies the law in the name of the state. The judiciary also provide a mechanism for the resolution of disputes. But unfortunately, today our judiciary is stressed and overburdened with pending cases. Courts are flooded with cases but the number of judges to resolve this dispute has not increased. Backlog of cases in Bangladesh is increasing in an alarming rate.

As the rate of lodging the cases as much higher than the settling the case, the number of fling cases is increasing geometrically. Thus it will need one hundred years to clear the backlog of cases. A survey shows that it will need more than 40 years to settle the existing cases without any new cases in the court.                         

Prime Minister Sheikh Hasina urged the lawyers, judges and the judiciary as a whole to take necessary step to ensure people’s rights to quick and hassle free justice. She opined that “Getting justice quickly, less expensively and hassle free is the right of the people.”

ADR or ‘alternative dispute resolution’ is a very important and stimulation theme of contemporary relevance.

Litigation involves lot of delay given the appeals\revision\review including the constitutional remedies. Once there is a delay, obviously, the litigation process will become expensive as it is not just the fee paid to the advocate and courts but also it includes the cost of conveyance to the courts, advocate office loss of man days and the psychological trauma one goes through in sustaining the litigation. Ultimately, when the courts finally decide on the dispute invariably on the parties to the litigation will not be happy because of losing the case, the other party though has owned the case would pay heavily for it.

In this background, comes the importance of Alternative Dispute Resolution (ADR) methods. Alternative dispute resolution is alternative to litigation as method of dispute resolution. The ADR methods are – Negotiation, Meditation, Conciliation, Mini Trial, Arbitration and hybrid forms of these methods like conciliation cum arbitration, mediation settlement and being converted to compromise, decree etc. The term ADR has been used to describe various systems that attempts to resolve dispute through methods other than litigation in courts or tribunals.

There is a lot of flexibility in the use of ADR methods, the flexibility is available in the procedure as well as the solutions are found to the dispute, the solutions can be problem specific. The rigidity of precedent as used in adverse serial method of dispute resolutions will not come in the finding solutions to the disputes in a creative way. Because ADR is directly concerned at large, they are the whole purpose of the ADR services, to help resolve their disputes, conflicts and litigations, to ensure active help to our causes and judicial administration, to gain access to justice and to maintain rule of law in the country and finally to ensure justice for all.

Mediation is a process of social justice to resolve disputes and conflicts and even ongoing litigations between the individuals, the companies, the government departments, even between the nations. It is used in business, in organizations, public organizations, public services, in banks and financial institutions and even in diplomatic services.

In the modern world, private mediations are conducted by the lawyers, retired judges and sector leaders’ judicial meditation are done by the trial judges in their respective courts. The development of ADR methods will provide   access to Justice to many litigants. It helps in reducing the enormous work load that is imposed on the Judiciary. Once the cases pending before the judiciary become manageable, the courts will be able to improve the quality of their decisions. All these will go a long way in improving not only the access to Justice, but even the quality of Justice.                                                   

Bangladesh has an old age history of Alternative Dispute Resolution (ADR). The village people usually preferred settling disputes amongst themselves and do not appreciates any intervention from other people or villages. With the gradual breakdown of the more traditional values of the social fabric , the traditional system of resolving disputes now stands virtually extinct and has been replaced by police cases, legal procedures and other methods. 

Thousand years of track record of private mediation in villages still our respective elders mediate and resolve local disputes of civil and criminal natures some years back, in an UNDP report, it was confirmed that the village elders resolve highest percentage of the day to day dispute through Salish and Mimangsha without going to courts, mainly to avoid cost and delays. 

The community leaders delve deep into the root cause in the presence of both parties, hear viewpoints of disputants, and try to find a solutions agreeable to the parties concerned. Resolving disputes through community initiatives with the above tools are commonly knowns as Alternative Dispute Resolution. 

This is called mediation to an extent in modern terminology. Only the difference is, in mediation we use a special processes and techniques that are needed to be learned through education and training. Our people are needed to be informed of this modern art of mediation that is available in Bangladesh now, conducted by neutral facilitators, called meditators, to help them find their own solutions precisely.

The government has taken initiative to introduce Alternative Dispute Resolution (ADR). It is aimed at quick settlement of cases form the highest court down to the lowest. This is urgently necessary because hundreds of thousand cases have remained pending in the courts. This is cause of untold sufferings of the litigants.  Judicial system should be poor-friendly. Everybody should get justice without spending much money and time and justice in any case should not be delayed without valid reason. Every litigant has a right to speedy and fair trial. 

Md Golam Mostafa is Advocate, Bangladesh Supreme Court and Former Director, Amnesty International, Bangladesh