Monday, January 28, 2013

Can Bangladeshi Existing Civil Justice System Ensure Access to Justice?

Our legal system theoretically ensure access to justice for each and every citizen of the county 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 a 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[1].
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.

Problem in our Civil Justice System
Our judicial and legal system has been historically nourished in the rich tradition of common law, and it can boast a long record of good delivery of justice. Like any other legal system, common law with its adversarial or accusatorial features, has its merits and demerits. But in recent years certain objective and subjective factors have so combined as to lead our judiciary to a situation where its demerits are overpowering the merits. Manifesting is crippling backlogs and delays. Delayed justice reduces even the winner of the litigation, for its costs in terms of time, money, every and human emotions are too high[2].
The reasons for delays in the functioning of our civil justice system are both systemic and subjective. They may be identified as follows:
  1. Common law oriented adversarial or accusatorial character of the civil process  as  against inquisitorial  as  practiced  in  continental   Europe, meaning that the litigation is a party controlled which provides wide maneuvering power to the lawyers and presupposes lesser initiative and relative passivity of the judges.
  2. Slow process of service of summons, which can be further slowed down by the intentions of the parties concerned indicating poor state of court administration.
  3. Too much reliance on the resort to interim injunctive relief and orders, leaning the hearing of the 'main contentions and

How ADR Can Take Role to Access to Justice?

Use of formal court system requires resources unavailable to sector of the population formal court system are biased against women minorities or other groups illiteracy prevents part of the population from using formal court system. Distance from the courts impairs effective use for rural population. ADR can be effective successful in some cases where ordinary court of law cannot even take a decision. There are below:

Pacific Settlement
Any dispute settled by any for of ADR ends dispute 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 access on being proved guilty may attempt to commit further crises in order to traumatize the victim thus a vicious cycle is created. ADR relieves such tension and thereby reduces conflict in a society.

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 form a different class ADR can play vital role to overcome this problem.

Counteracting Discrimination and Bias in the System
When courts are systematically biased against particular group, such as minorities or women ADR program can sometimes help provide some measure of justice. In Bangladesh the courts often poorly protect women. Some NGOs sponsored ADR program take special initiative in this regard as the MLAA mediation program has procreative women to serve on mediation panels in the village 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.

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 curt of law the court has to follow many formalities has to hear every concerned party. Witnesses and verify necessary documents. Thus a case may run for more than 50 years. 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.

Over Coming the Berried of Illiteracy
In Bangladesh access to justice is effective by denied because the formal system requires a level of literacy that many in the county 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 poor pressure eliminating the need for written documentation or formal enforcement mechanisms.

Cheap Process
Moving ordinary court of law costs 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 judgment or order or decree. The parties to the suit have to court enough money since ADR follows informal procedure. ADR saves money and thus help people of varying strata of the society to get remedy.

Access to Justice
Constitutions of most of the countries provide for the peoples right to Justice. This is also evident in the international and regional instruments of human rights. But in effect this may not always be the case. ADR significantly created access to Justice for such disadvantaged group who would not get justice in ordinary court of law.

Assistance or Ordinary Legal System
All over the world the ordinary courts 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 be 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.

Effective Remedy
Sometimes ADR can award effective remedy in comparison with the remedy provides by the ordinary law of the land. We have inherited our legal system from our British rulers and in most cases thee laws may not be effective. Hence ADR operates as an alternative and efficacious remedy for the aggrieved.

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 under pins human dignity and other key values such as freedom of Associations and freedom of speech ........privacy is a basic human right and the reasonable expectation of every person.

Role of different NGO’S of Rajshahi in dealing with ADR

NGO means Non-Governmental organization. The development of a country depends upon the activities of a state government. But in the mediation development is not possible only by the activities of the Govt. The Non-government organization is doing a lot of amazing activities for development of a static[1].
NGO plays role in the legal sectors a for awareness of the citizens a development of the peoples status. In Bangladesh, the most concerning NGOs are MLAA (Madaripur legal Aid Association), BLAST (Bangladesh legal Aid a service Trust) BNALA (Bangladesh national woman Lawyer’s Association) etc. In this research the containing issue of ADR Activities in Rajshahi: comparative study, the researcher will concern in role of NGO, prominent in their ADR activities in Rajshahi. Among them-BLAST, BNWLA, are very much active in ADR activities in Rajshahi. Now, the Researcher will forms role of the Blast & BNWLA in Rajshahi.

BLAST, the Bangladesh legal Aid services Trust (BLAST) is a NGO, has been registered in 1993 as a NGO which provides the legal assistance to poor people in the aspect of fundamental rights or other statutory rights through the Judicial Systems as well as quasi-judicial or alternative way. It aims to ensure opportunities for securing justice backward reaction. BLAST involves in PIL, rural mediation legislative advocate and for protecting women workers economic rights. It also gives legal aid clinics as part of its legal literary & legal aid service. The main activities have done by BLAST through legal aid by the process of ADR activities or by alternative dispute resolution method. From the case studies or piratical method there is a clear knowledge about the ADR activities of NGOs in Rajshahi.
ADR activities of BLAST in Rajshahi are done on two categories of beneficiaries. For people from the middle class a above BLAST conducts arbitration for settling disputes and for those coming from a less fortunate economic background mediation services are made available. BLAST prods to assists in the sentiment of the confect. It settled through arbitration methods where the demand of the parties being quite specific, where the people in a dispute issue has lack of legal knowledge and demand is unclear them mediation services are highly effective.

Disposed suits in the month of December, 2011 through the Bangladesh Legal Aid Services and Trust Rajshahi Unit[1].
Reg. & Date
Nature of Allegation
Salish No. (with date) Number of sittings & Date of Salish
Type of Settlement
Settlement Date
Output of Salish & Amount of recovery money
Mst. Firoza Begum
Md. Rafiqul
Family matters
Dower & Maintenance
Through office
Execution of divorce,
Amonut of dower money & maintenance  TK.15000
Mst.  Morzina
Md. Abu Bakar Siddque
Through office
Continuation of marital relation
Mst. Sahana
Md. Imran Hossain
Through office
Mother shall be the cusdian of her 13 years daughter
Mst. Salma
Md. Sohel Rana
Through office
Parties shall continue their marital relation with children
Maintenance money TK. 100 per day
Mst. Mina Begum
Md. Abdus Sattar


Through office
Maintaining their good relation
Mst. Sikha Yasmin
Md. Zahangir Hossain

Through office
Maintaining their marital relation & payment of maintenance duly
Mst. Kohinur
Md. Nobirul
Family matters
Through office
Wife will oblige her husband
Mst. Somanta Ban
Md. Sukur
Family matters
Through office
Full status of wife & payment of due maintenance TK.1500
Mst. Sadina
Md. Parveza Shekh

Through office
Husband shall not torture his wife
Mst. Delowara
Abdul Mannan
Divorce & payment of dower and maintenance
Through office
Break-up their relation & payment of dower and maintenance cost TK. 35000.

BNWLA is a one of the renounce NGO in Bangladesh. The elaboration “BNWLA” is Bangladesh National woman Lawyer’s Association. It is NGO which has established in.  
In Briefly, BNWLA has three categories program approach. These are PPR. That merges.
  • 1st P = Protection
  • 2nd P = Prevention
  • 3rdly P = Rehabilitation
ADR Activities are inhered with the 2nd “P” that means with in the preventive activities by the BNWLA Among the different Criteria to deal preventive activities there are some activities, such as- 
(i)                 Conduct awareness
(ii)               Assist community by partners to get access to informal and formal Justice System.
(iii)             Sensitize people through mass media.
In the aspect of (iii) The BNWLA assist community to get access of informal Justice System through ADR Activities.
BNWLA believes to ensure Justice; the survivors should be brought under a system friendly to women and children. In the year 2007, BNWLA has received 6676 Cognizable offense through shalish. Mediation or Alternative Dispute resolution (ADR) and accordingly a total of 484 complaints were resolved through mediation. But when they failed to resolve the complaint through mediation then the lawyers filed the case. The approach is to give priority to mediation and once it failed then the case is being filed. The Graph II shows distribution of cases by mature of violence. During the reporting period the organization has filed a total of 614 cases where 120 cases were filed directly by the partner organization with the help of the clinic lawyers. Out of these cases 329 were criminal in nature while 285 were civil in nature.
BNWLA, has bun playing the role of catalyst through capacity building by providing training on “Shalish”, “Mediation”, “Fact finding” a “Paralegal”.

[1] This report  has collected from the office of BLAST, Rajshahi Unit

[1] Halim, Md. Abdul, ADR in Bangladesh: Issues and Challenges, 2nd Edition (January, 2011), CCB Foundation, p.164