Wednesday, January 2, 2013

Historical Development of ADR in Bangladesh

During the Hindu period in ancient India, Hindu society, institutions and beliefs gradually developed and define shape was given to them. Many important beliefs and doctrines of today are deep-rooted in the Hindu ideology; one of those is Alternative Dispute Resolution.
In villages, the local village councils or kulani, similar to modern panchayats, consisted of a board of five or more members to dispense justice to villagers. It was concerned with all matter relating to endowment, irrigation, cultivatable land, punishment of crime, etc. Village councils dealt with simple civil and criminal cases. The head of the villagers acted both as leader of the village and the mediator with the government[1].
In sultanate period, a Parganah was divided into a group of village. For each group of villages there was a Panchayat, a body of five leading men to look after the executive and judicial affair. The Sarpanch was appointed by the Nezim or the Faujdar. The Panchayat decide civil and criminal cases of a purely local character. As a general rule, the decision of the Panchayat was binding upon the parties and no appeal was allowed from its decision[2].
In Mughal period, the village was the smallest administrative unit. From ancient times the panchayat were authorized to administer justice in all petty civil and criminal matters between the villagers by arbitration as well as by adjudication. Important cases could not be decided by the Panchayat which could only chastise, impose fine and ostracise the offender. It was presided by five Panchs elected by the villagers who were expected to give a patient hearing to both the parties and deliver their judgment in the Panchayet meeting. Sarpanch was generally president of the Panchayat. No appeal was allowed from the decision of a Panchayat[3].
The formal system of administration of justice introduced during the British rule replaced the old system of dispensing justice through the feudal set-up. But the traditional institutions continue to play their role of dispute resolution though not known by their old name. After math, arbitration and conciliation as the methods of ADR, received statutory recognition in the Code of Civil Procedure, 1908. Having passed the arbitration Act, 1940, arbitration provision was repeated from the Code of Civil Procedure. But it is pertinent to say that the application of the provision this Act was not satisfied and the courts would not follow these provisions mandatory[4].
During the Pakistan period, arbitration as one of the important method of ADR, received statutory recognition in the Muslim Family Ordinance, 1961. Under this ordinance, by arbitration, as a method of ADR is mandatory to resolve the dispute as to dissolution of marriage. Union parishad would have to follow arbitration process to resolve this dispute.
Besides the above mentioned measures adopted as the process of ADR, Bangladesh Government has promulgated the following acts for the effective application of ADR procedure for dispensing the dispute outside the court:
(a)    The arbitration Act,2001
(b)   Insertion Section 89A, 89B and 89C of CPC
(c)    Arthorin Adalat Ain, 2003
(d)   Bangladesh Labor Law, 2006
(e)    Family Court Ordinance, 1985
Dispute conciliation board Act, 2004

[1] V.D. Kulshreshtha, Landmarks in Indian Legal and Constitutional History, 7th ed. (Lucknow: Eastern Book Company, 1995), p.6.
[2] Ibid, p.20.

[3] Kazi Ebidul Hoque, Administration of Justice in Bangladesh, 1st ed., (Dhaka: Dhanshiri Printing and Publishing Co. Ltd, 2003), p.3.
[4] SK. Golam Mahabub, Alternative Dispute Resolution in Commercial Disputes: The UK & Bangladesh Perspectives, 1st ed., (Dhaka: SK. Golam Mahabub, 2005), p.16.

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