ADR IS CIVIL JUSTICE SYSTEM IN BANGLADESH
By: Advocate Md. Rayhan Uddin (+8801914676110)
Introduction:
Disputes
are a fact of life. A. D. R. means Alternative Dispute Resolution,
mostly applied to civil cases. When a civil case is instituted in a
court of competent jurisdiction, the scenario usually is, that a long
time is taken to serve the process, the defendants beat the law and
submit their written statement/s after a long delay beyond the
permissible statutory period of two months, lawyers and judges do not
take any interest in screening out a false and frivolous case at the
first hearing of the case under Order X CPC (in fact no such first
hearing takes place), they seldom try to shorten the disputed questions
of fact and law by application of Orders XI and XII of the CPC and
mostly ignore the elaborate procedure of discovery, interrogatories,
notice to produce etc. contained in those Orders, the issues of a case
are seldom framed following the Code of Civil Procedure, the case takes
several years to reach a settlement date and on the date of positive
hearing half a dozen or more ready cases are fixed for hearing,
resulting in the hearing of none. It delivers formal justice and it is
oblivious of the sufferings and woos of litigants, of their waste of
money, time and energy and of their engagement in unproductive
activities, sometimes for decades.
Most
of us who are or were in the judiciary and were or are practicing in
the Bar think that nothing can be done about it, or, at least, we have
no role to play in the matter, either individually or collectively. We
are drifting into a stage of aimlessness, inertia, inaction and
helplessness. Many conscientious judges and lawyers have done what they
could under the circumstances, but their sincerity has been drowned into
the general morass of malfunctioning of the court system.
What is Alternative Dispute Resolution (ADR?)
Alternative
Dispute Resolution refers to the means of settling disputes without
going through legal procedures. Through ADR settlement of disputes can
be done in many formal and informal ways but here ADR emphasis is mainly
on the settlement of disputes by local community initiatives. It is an
age-old tradition of society through which disputes are resolved
amicably and which concerned parties accept. Normally authority does not
challenge it. It is not institutionalized, but both the community
members and the disputants accept it. There are different ways to
resolve disputes. Some are resolved formally, others informally, and
some are resolved as time passes by.
Objectives of ADR
In
the recent past the alternative dispute resolution system (ADR) has
been developed in the USA and the rate of success of ADR is
significantly high, as the parties have been able to come forward to sit
together to talk together and finally resolving their disputes. The
prime aim of alternative dispute resolution system in civil justice
delivery system in Bangladesh is closing the hostility between the
disputing parties and restoration of harmony. In this system a high
degree of public participation and co-ordination is badly needed. A
general sense of satisfaction develops which helps in enforcement of the
decision, when people’s participation is ensured as to tending
evidence, asking questions and making opinions. Thus the reconciliation
can be eased, which is the fundamental objective of ADR system.
Different forms of ADR and their application in civil justice system:
Negotiation,
mediation and arbitration are the most common features of ADR
techniques in Bangladesh. Let us discuss the three important ways of
dispute resolution.
Mediation” is
voluntary process where a natural mediator attempts to help the
disputing parties to reach an agreement that is acceptable to both sides
and that will bring the dispute to an early conclusion without having
to go to Court.[1]
Arbitration”
means a process of adjudication of a dispute or controversy on fact or
law or both outside the ordinary civil courts, by one or more persons to
whom the parties who are at issue refer the matter for decision.[2]
“Negotiation”
is a non-binding procedure in which discussions between the parties are
initiated without the intervention of any third party with the object
of arriving at a negotiated settlement of the dispute.[3]
“Med-Arb” is a procedure which combines, sequentially,
conciliation/mediation and where the dispute is not settled through
conciliation/mediation within a period of time agreed in advance by the
parties, arbitration.[4]
Laws pertaining to ADR in Bangladesh:
a) Code of Civil Procedure,1908
For
the first time in our legal system the provision with regard to ADR has
been introduced by amending the Code of Civil Procedure. In chapter V
of Artha Rin Adalat Ain, the provisions of ADR have also been
incorporated. Surely, this concept is a denovo in our civil justice
delivery system. Now ADR has come within the domain of civil procedure
code.
By the recently enacted sections 89A/89B of CPC, the ADR system (mediation and arbitration) has been introduced, the two terms ‘mediation’ and ‘arbitration’. Section 89A lays down that except in a suit under the Artha Rin Adalat Ain, 1990 (Act. no 4 of 1990)
By the recently enacted sections 89A/89B of CPC, the ADR system (mediation and arbitration) has been introduced, the two terms ‘mediation’ and ‘arbitration’. Section 89A lays down that except in a suit under the Artha Rin Adalat Ain, 1990 (Act. no 4 of 1990)
after
filing of written statement, if all the contesting parties are in
attendance in the court in person or by their respective pleaders, the
court many by adjourning the hearing, mediate in order to settle the
dispute or disputes in the suit or refer the dispute or disputes in the
suit to the engaged pleaders of the parties, or the party or parties,
where no pleader or pleaders have been engaged, or to a mediator form
the panel as may be prepared by the District Judge under subsection 10,
for undertaking efforts for settlement through mediation. Similarly, the
term ‘settlement conference’ has been used to denote mediation process
in the part V of Artha Rin Adalat. The provisions have been made in this
regard that the court can mediate the suit matter after filing the
written statement by the defendant or defendants, by adjourning the
subsequent procedures of the suit
The government by amending the Code of Civil Procedure expands the avenue for shalishi.
By The Code of Civil Procedure (Amendment) Act, 2003 two new sections
were incorporated (section 89A, 89B) in the code. It empowers the court
to solve the matter through mediation or conciliation before the
beginning of the trial except case under Artha Rin Adalat Ain. However
there remain some limitations too, it will not exempt the disputant
parties from the appearance before the court. This law is only relating
to the pending cases,
The Civil
Procedure Code (Amendment) Act, 2002 has been enacted to introduce
Alternative Dispute Resolution (ADR) system for early and consensual
disposal of civil suits. Section 89A and 89B have been inserted to allow
parties to settle their disputes in suits, through mediation or
arbitration. In the mediation procedure, the court may take initiative
to settle the dispute in the suit by itself or by making reference to
independent mediators. Under section 89B parties will be allowed to
withdraw pending suits and have those settled through arbitration. The
provisions have been made effective from 1st July 2003.
ADR
system is gaining popularity. This procedure will help to reduce the
huge backlogs of civil cases in courts. Public confidence in the
judiciary will thereby increase. Access to justice will be expanded. The
provisions will also help develop a new culture of consensual
settlement of disputes doing away with the existing adversarial
procedure. It will help protect and preserve cohesion and fraternity in
society. Of the mediator here the advocate or any other person may be
hired for mediation.
b) Artha Rin Adalat Ain, 2003
In
our legal system, money lent by financial institutions/banks to
individuals, private limited companies, public limited companies,
corporations, partnership firms, societies, co-operatives,
proprietorship firms etc. when due for default, is realised through
money suits, suits for foreclosure, mortgage by instituting the same to
competent civil courts. The civil courts were burdened with other
businesses and such suits of banks consumed time for disposing of. The
delay caused made the bank sector suffer for non-realisation of dues in
time and the bankers gathered bitter experience in realising the same.
To remove this difficulty, the government enacted a special piece of
legislation named “The Artha Rin Adalat Ain, 1990” which had gone under
some changes by way of amendments since its inception. The law brought
changes to a great extent in the administration of justice delivery
system for regulating those suits but it failed to fulfil the
expectation of the legislators/bankers to recover the dues expeditiously
from the defaulters. The thinkers on the subject gave second thoughts
to frame a new law and ultimately the legislature passed “The Artha Rin
Adalat Ain, 2003” (hereinafter Adalat) by repealing the earlier one.
The
law came into force on 1st May 2003 except sections 46/47 which came
into operation on 1st May 2004. Within a short span of time, the law has
gone under an amendment by the Artha Rin Adalat (Amendment) Ain, 2004
which reflects weak draft of the law.
There
is no such legal provision in the Environment Court Act, 2000 like the
present one. Therefore section 4 (4) and section 4 (10) should be
omitted, and the provisions if so omitted, there would be no practical
difficulty to appoint the Joint District Judges to the Adalat like the
Environmental Courts.
Section 19 has
provided provisions for setting aside the ex parte decree but it does
not make any provision for notifying the plaintiff bank like Order 9
Rule 13 of the Code of Civil Procedure 1908. As a result, the plaintiff
remains ignorant about restoration of the suit. This anomaly should be
removed by inserting appropriate provision. Section 20 of the law has
given finality to the order, judgment and decree of the Adalat. In spite
of that the defaulter(s)/borrower(s) is/are challenging the same in the
writ jurisdiction of the High Court Division under Article 102 of the
Constitution of the People’s Republic of Bangladesh and obtaining stay
orders from the High Court Division.
In
a recent discussion on “Money Loan Court Act 2003” organized by the
Association of Bankers, Bangladesh (ABB), the Governor of Bangladesh
Bank asked the banks to take special measures to recover bad loans as
the defaulters filed 1,768 writ petitions in the High Court for such
loans amounting to Tk 6445 core. He told that the banks cannot recover
the loans due to stay orders from the court, and asked the monitoring
cells of banks to take up these issues seriously and hire efficient
lawyers to move the cases of loan default.The Daily Star dated June 2,
2006). It is observed from regular business of court that the banks have
been refraining from taking any step against the stay orders in writ
petitions. It is seen that the banks let them (the defaulters) do the
same with consent. This attitude of the bank should be changed and
effective steps should be taken to face the legal battle with the
defaulters.
Apart from the
aforementioned barriers, the law has been playing a very vital role in
realising the loan from the defaulter(s). Its achievement in loan
recovery has been so immense that the scenario of defaulting loan has
improved significantly with number of pending Artha Rin Suits reducing
with expectancy rate. The loan defaulting culture would further be
reduced if the barriers can be removed as soon as possible.
c) Family Courts Ordinance, 1985:
Generally
disputes relating to property, family matter i.e. distribution of
property, dissolution of marriage, maintenance, guardianship could be
dealt by shalish. The Family Courts Ordinance, 1985 speaks for
the settlement of dispute through conciliation inside the Court before
the formal proceeding of the trial started. The court may initiate a pre
trial hearing to settle the disputes relating to dissolution of
marriage, maintenance, and dower, restitution of conjugal rights as well
as guardianship and custody of children. Besides, the Muslim Family
Laws Ordinance 1961 empowers the Union Parishad to form an Arbitration
Council for reconciliation between the parties wishing to dissolve their
marital tie through Talaq and to deal with the polygamy.
“ADR in family court”
If
ye fear a breach between them twain, appoint (two) arbiters, one from
his family, and the other from hers; if they wish for peace, Allah will
cause their reconciliation: for Allah hath full knowledge, and is
acquainted with all things.[5]
Settlement
of Dispute through Mediation in family court is started in Dhaka Jugde
Court from 2000. Then, it was expanded in different cities and
districts. Family Court Ordinance 1985 in its section 10 and 13 is said
about the Mediation process. The procedure provides in family court is-
i)
When the written statement is filed, the Family Court shall fix a date
ordinarily of not more than thirty days for a pre-trial hearing of the
suit.[6]
ii) On
the date fixed for pre-trial hearing, the Court shall examine the
plaint, the written statement and documents filed by the parties and
shall also, if it so deems fit, hear the parties.[7]
iii)
At the pre-trial hearing, the Court shall ascertain the points at issue
between the parties and attempt to affect a compromise or
reconciliation between the parties, if this be possible.[8]
iv)
Then, where a dispute is settled by compromise or conciliation, the
Court shall pass a decree or give decision in the suit in terms of the
compromise or conciliation agreed to between the parties.[9]
v)
If no compromise or reconciliation is possible, the Court shall frame
the issues in the suit and fix a date ordinarily of not more that thirty
days for recording evidence.[10]
vi)
After the close of evidence of all parties, the Family Court shall make
another effort to effect a compromise or reconciliation between the
parties.[11]
vii) If such compromise or reconciliation is not possible, the Court shall
pronounce
judgment and, on such judgment either at once or on some future day not
beyond seven days of which due notice shall be given to the parties or
their agents or advocates, a decree shall follow.[12]
Arbitration Act 2001.
Arbitration Law in Bangladesh
Bangladesh
has enacted the Arbitration Act 2001 (the Act). It came into force on
10 April 2001, repealing the Arbitration (Protocol and Convention) Act
1937 and the Arbitration Act 1940, legacies of the British Raj in India.
The new Act was again amended in 2004 in certain respects. Such
legislative steps were urgent in the face of increasing foreign
investment in Bangladesh in various sectors, especially in natural gas
and power, and the ever-growing export trade with the rest of the world.
The Act consolidates the law relating to both domestic and
international commercial arbitration. It thus creates a single and
unified legal regime for arbitration in Bangladesh. Although the new Act
is principally based on the UNCITRAL Model Law, it is a patchwork quilt
as some unique provisions are derived from the Indian Arbitration and
Conciliation Act 1996 and some from the English Arbitration Act 1996.
In
Bangladesh, the present law of arbitration is contained mainly in the
Arbitration Act, 1940, there being separate Acts dealing with the
enforcement of foreign awards. There are also stray provisions as to
arbitration, scattered in special Acts. Three types of arbitration are
contemplated by the Arbitration Act of 1940, namely (i) Arbitration in
the course of a suit, (ii) Arbitration with the intervention of the
court, and (iii) Arbitration otherwise than in the course of a suit and
without the intervention of the court in practice, the last category
attracts the maximum number of cases.
Under
the Act of 1940, an arbitration agreement must be in writing, though it
need not be registered.This also amounts to an “arbitration agreement”
for the purposes of the Arbitration Act, 1940. Once an arbitration
agreement is entered into for submitting future differences to
arbitration, it is not, necessary to obtain the fresh consent of all the
parties for a reference to arbitration at the time when the dispute
actually arises.
Concluding Recommendation:
The
key to success of A.D.R. in Bangladesh lies in the manner of its
introduction. A.D.R. is no longer an unheard of concept of dispute
resolution among judges, litigants and lawyers of Bangladesh. The Family
Courts all over Bangladesh are actively engaged in A.D.R. The pilot
family courts are only exclusively engaged in mediation, but other
Assistant Judges, who received training in mediation, are also mediating
apart from trying cases. The mediation output of all the Assistant
Judges, taken together, is something to be proud of. The Ministry of Law
only needs to collect maintain and update all relevant statistics in
this regard. To make ADR more effective, extensive, and pro-active,
coordination is needed among different agencies. Other initiatives are
given below:
1) Creating awareness about ADR
2) Spreading the success story of ADR
3) Encouraging NGOs to become involved in ADR
4) Involving the Bar Associations in ADR
5) Providing training for mediators
6) Matching Government and NGO efforts.
7)
A. D. R. will have a-smooth transition if it is introduced on a pilot
court basis. The performances, results, reactions among pilot court
judges, practicing lawyers and the litigants should be carefully
monitored and recorded and suitable adjustments in the A. D. R. project
should be made at each stage of extension after an exhaustive study of
the experiences gained.
[1] Hazel Genn, Mediation in Action: Resolving
[2] SK Golam Mahbub, Alternative Dispute Resolution in Commercial Disputes: The UK and Bangladesh Perspective 2005, at p. 21.
[3] P. C Rao, Alternative to Litigation in India, 1997, p.26
[4] ibid
[5] found in http://www.guidedways.com/chapter_display.php?chapter=4&translator=2, last accessed on 18.04.2010
[6] Section 10 of the Family Court Ordinance 1985
[7] ibid
[8] ibid
[9] Section 14 (1 of the Family Court Ordinance 1985
[10] Section 14 (2) of the Family Court Ordinance 1985
[11] Section 13 (1) of the Family Court Ordinance 1985
[12] Section 13 (2) of the Family Court Ordinance 1985
