Sum-up of all legal provisions
available in Bangladesh
In
Civil Suits:
1. Code of Civil Procedure
- Mediation u/s 89A
- Arbitration u/s 89B.
- Polygamy u/s 6
- Divorce u/s 7
- Maintenance u/s 9
3. Family Court Ordinance,1985
- Pre-trial Proceeding u/s 10
- Post-trial Proceeding u/s 13
4. Artha Rin Adalat Ain, 2003
- Settlement Conference u/s 21
- Mediation u/s 22
5. Gram Adalat Ain, 2006 [all sections]
6. The Conciliation of Disputes (Municipal) Board Act, 2004 [all sections]
7. The Arbitration Act, 2001 [all sections]
8. The Labor Code, 2006
- Negotiation u/s 210(1,2,4)
- Conciliation u/s 210(6)
- Arbitration u/s 210(16)
In Criminal Cases:
1. The Criminal
Procedure Code,1898
- Compounding offences u/s 345
Brief
discussion of some of the aforesaid Statutes & its provisions
Code
of Civil Procedure
There is no provision related Alternative Dispute
Resolution directly in Civil Procedure Code by mediation. But in previous we
perceived that Section 89 and sub section 1 of Section 104 in CPC had been for
dispute resolution. After that in year 2000, ADR in civil procedure is the
effect of success of Pilot project 2000 on mediation in Dhaka judge court and
besides some other courts of Bangladesh. In Section 89a and 89b of the Code of
Civil Procedure 1908, mediation and arbitration respectively has been
incorporated through the Amendment, 2003[1].
As to the provision of Section 89(a) of CPC,
mediation can be define that mediation mean flexible, informal, non-binding,
confidential, non-adversarial and consensual dispute resolution process in
which the mediator shall facilitate compromise of disputes in the suit between
the parties without directing or directing the term of such compromise.
As to the provision of 89 after filling of plaint by
the plaintiff and written statement by defendant, the court may take an
initiative to settle the dispute by Mediation. If the contesting parties agree
to settle the dispute through mediation, the court shall so mediate or refer to
District Judge for settle the penal. The mediator will be selected from the
District Judge itself, any retired judge, a lawyer nominated by the parties who
is not involve with either parties, except person holding office of profit in
the service of Republic. When the court shall mediate, it shall determine the
procedure of the mediation and conducted by court and the pleader, their respective
client and the mediator will mutually determine the fees and the procedure. If
the mediation process is filed, the court shall precede the suit for hearing
from the stage at where the suit stood before refer to mediation. And if the
mediation by the court and it fails, the same court shall not hear and the suit
shall be heard by another court of competent jurisdiction. If the mediation is
successfully over, the term of such compromise shall be reduced into writing in
the form of agreement and taken signatures or thumbs impressions of the parties
as executants and pleaders and mediator as witness. Finally, the court will
pass an order or decree to the reliant provision of Order 23 that code.
The mediation shall be conducted within 60 days from
the day on which the court is so informed. But the time of execution for
further period shall not exceed 30 days. After a successful mediation the
parties will get return court fees. No appeal shall lie against the order or
decree passed the court of mediation.
Section 89 (b) has extended the opportunity to
settle the dispute alternative way through arbitration. Under this section, any
stage of the proceeding parties can make an application to solve the dispute
through the arbitration and withdraw the suit to the court. The court shall
allow the applicant and permit to withdraw the suit. This arbitration shall
comply with the Shalish Ain, 2001. If any reason the arbitration dose not take
place or fail to give award, the parties shall be entitle to re-institute the suit.
That application shall be deemed to be arbitration under Section 9 of the
Shalish Ain, 2001.
As if mediation has accomplished on
the application of contesting parties, the court passed a order and the
contesting parties must be submissive on that order. But the court cannot
create any kinds of pressure for the mediation, which has been described on the
section 89 of CPC. The contesting parties can be settle their dispute wholly or
partly by mediation.
Former Justice of Bangladesh High Court and First
Director of Judicial Administration Training Centre Justice Md. Baruzzaman
would be answering that, “under the present provision of law it is not
mandatory for the Judge himself to mediate or refer the dispute for mediation,
but in doing so the Judge must exercise his discretion by taking into
consideration the intention of the legislature and the cause of just, speedy
and inexpensive justice[2]”.
As per the provision of the
Sub-section (4) of section 89 a Within
10 days from the date of submission of written statement, the parties shall
inform the court in writing as to whether they have agreed to try to settle the
dispute or disputes in the suit by mediation and whom they have appointed as
mediator, failing written statement will stand cancelled and the suit shall be
proceeded with for hearing by the court their agreement to try to settle the
dispute or disputes in the suit through mediation and appointment of mediator,
the mediator shall be conclude within 60 days from the date on which the court
is so informed, unless the court of its own motion or upon a joint prayer of
the parties extends the time for a further period of not exceeding 30 days.
As to the provision of sub-section
(12) of the section 89(a) of CPC, no appeal or revision shall lie against any
order or decree passed by the court in pursuance of settlement between the
parties.
Though trial courts have been
exercised ADR in civil suit according to the provision of Act III of 2003, but
there is no jurisdiction of appellate court. For that, So many cases were
pending for settlement in the Appellate court year to year. At last, Act 8 of
2006 has created an opportunity to settle the cases by using mediation.
Provision of mediation in Appeal is as follows –
Appellate Court may mediate in an
appeal or refer the appeal for us the shining mediation in order to settle the
dispute here are or disputes in that appeal, if the appeal is an appeal from
original decree under Order XLI, and is between the same parties who contested
in the original suit or the parties who have been substituted for the original
contesting parties.
In mediation under sub-section (1), the appellate
court shall follow the provisions of mediation as contained in section 89a with
necessary change as may expedient as far as possible.
Above discussion shows that application of ADR in
our civil court is epoch making decision. Though the ADR, the people of our
country get privilege as far as possible. As well as the judges and appellate
court get relief from the cases which are filed year to year. On that
achievement Justice K. M. Hasan give opinion that, “the greatest achievement of
the mediation court is changing of mental attitudes of the judges, lawyer,
litigants and general public who were skeptical about mediation. Initially,
there were feelings of opposition and suspicion by some in the legal profession
for this entirely different based discipline but it is changing. Those who used
to come the court with confrontation mode are accepting the idea of mediation
and more are coming prepared to settle dispute through mediation. It is
interesting to note that the same lawyer who fight tooth and nail to win a suit
in trail also try hard to find out solution through mediation[3].”
Muslim
Family Law Ordinance
Muslim Family Law Ordinance had been effected from
15th July, 1961. Such Ordinance has been applied on every Muslim
citizen of Bangladesh both who lives inside in or abroad of Bangladesh. No
distinction between Sia or Sunni in front of the Muslim Family Law Ordinance.
In the leading case named Nirmal Kanti Das v. Sreemati Bavi Rani[4] states that application of Muslim Family Law
Ordinance,1961 has been overridden by section 3 of Family Court Ordinance in
clear language providing that this Ordinance shall have effect not withstanding
any thing contained in any other law.
In the mentioned provision subsection (a) of Section
2 of the Muslim Family Law Ordinance ‘Arbitration Council’ means a body
consisting of the chairman and a representative of each of the parties to a
matter dealt with in this Ordinance.
The chairman constructs an arbitration to settle any
kind of dispute related with Muslim Family Law Ordinance. He constructs such
council consisting of him and the representative of both the wife and husband.
The chairman asked the representative both of wife and husband within seven
days from the date of complain. Where any contesting party fails to nominate
their representative within the prescribed period, the council shall not stay
for any one. They are continued their works.
The chairman can give time for conciliation of
nominated representative or new nomination of representative, where their
nominated representative is or any kinds of reason he is not start form such
situation where previous nominated representative is rescinded.
Where the chairman is not Muslim or he is not
desired to attend arbitration council, he may apply the council for nominated
the other chairman who is Muslim. The council does the same according the
Muslim Family Law Ordinance.
The contesting parties may apply to the collector to
stay the hearing of council, where they might be seemed that the chairman
support the opposite party. The collector may be staying the hearing until
investigation on application is not completed.
As to the provision of Section 6 of the Muslim
Family Law Ordinance, no man shall contract another marriage without the
permission of arbitration council during the subsistence of an existing
marriage.
An application for permission from arbitration
council shall submitted to the chairman in the prescribe manner with prescribe
fees. The applicant shall state the reason for proposed marriage even though
the consent of existing wife or wives has been obtained.
On the reception of application the chairman shall
call the applicant and his existing wife or wives each to nominate a
representative. If the constitute arbitration council satisfied that the
proposed marriage is necessary, just, grant, and fit, may give the permission.
The arbitration council may justify situation of the
husband and physical and mental capacity of his wife. Then they decide whether
he required permission or not.
Any contesting parties may apply for revision
against decision of the arbitration. Any man who contracts another marriage
without the permission of the arbitration council shall pay immediately entire
amount of the dower due to existing wife or wives. If the amount is not paid by
husband, shall be recoverable as arrears of land revenue.
In the leading named Ayessa Sultana v. Shajahan Ali[5]
the court states that marriage of 2nd wife without permission of an
arbitration council violate law and punishable. As to the provision of the
Muslim Family Law Ordinance, any man who contacts another marriage without the
permission of the arbitration council shall be punishable with simple imprisonment
which may extent to one year or with fine which may extend to ten thousands
taka or both.
Sub-section (5) (a) (b) of section 6 of the
Ordinance refers to the penalties to which a man exposes himself for
contracting another marriage without the permission of the Arbitration Council.
Amount of the dower money shall be recoverable under certificate procedure
under the provision of the Public Demand Recovery Act on application made on
behalf of his wife. A complaint will have to be lodge on behalf his wife, and
the offence is triable by the Magistrate of 1st class with a right
of an appeal to Sessions Judge with a further right for moving the high court
in its revisional jurisdiction under Section 439 of Code of Criminal Procedure[6].
It may be noted in this connection that the words
“without the permission to the Arbitration Council” not only mean when no
application has been made by the husband but also include the case of an
application for permission to contract another marriage but permission has been
refused by the Arbitration Council[7].
The
Arbitration Act, 2001
Peaceful arbitration for settlement of dispute had
been applied from the ancient period. Arbitration had been introduced in
Greece, China, Arabia and Italy in 12th century and 13th
century. Arbitration took effective impact for settling the international
dispute in the end of the 18th century. After, International
Arbitration had successfully finished almost 100 cases. In those 100 cases, the
United Kingdom and United States of America had participated near about 70
cases. Hague Peace Conference created ordinary impact on International
Arbitration in 1899 and 1907. In Hague Peace conference, it had been described
about rules, procedure and structure of the arbitration and established
Permanent Court of Arbitration. Cordially the arbitration is to be proved as a
part of international law. Eventually, arbitration was pronounced as state law.
Concept
of Arbitration
The arbitration process
begins with an arbitration agreement which is a contract governing the terms
and process of the arbitration itself.
Appointment of arbitrator or arbitrator court, condition of arbitration and
procedure, jurisdiction of the tribunal etc are decided on the basis of the
agreement of the contesting parties. Any kinds of dispute can be solved by the
arbitration except the criminal cases. Even the commercial dispute can be
solved. Agreement of the contesting parties shows on which law and principal on
which the arbitrator settles the matter. The contesting parties may apply to
the court to use the principal of Equity, justice and Good Conscience. The
decision of the arbitrator is mandatory. On the above statement Greferry M.
Beresford Hartwell states in ‘Arbitration as The Moral High Ground of The New
Century’ that “ ……..the parties to an arbitration have agreed to some
alternative court, they have agree to some alternative court, they have agreed
not to go to Court at all. They have agreed to abide by the decision of a
friend. That friend may be someone they both know and trust, he or she may be
selected by some process they have devised and adopt, but still their direct or
indirect choice. They may decide to approach the doyen of their profession or
industry they may be happy enough with less exalted. If they have an obscure
problem of law, they may ask a lawyer, of technology perhaps someone who knows
the tricks of the trade. They may seek the decision of a priest or even a king[8].”
As to the provision of the Arbitration Act, 2001
‘Arbitration’ means any arbitration whether or not administrated by permanent
institution and ‘Arbitration Agreement’ means an agreement by the parties to
submit to arbitration council all or certain dispute which have arisen or which
may arise between them in respect of a define legal relationship, whether
contractual or not. An arbitration agreement may be in the form of an
arbitration clause in a contract or in the form of a separate agreement. Such
agreement shall be in writing and signed by the parties. It is contained in an
exchange statement of claim and defense in which the existence of the agreement
is alleged by one party and not denied by the other party.
The Arbitration Tribunal has no power to settle all
kinds dispute. Some particular dispute might be solved by the Council. That
kind of ability of the council is called arbitrability of dispute. Where any
party to an arbitration agreement or any person claiming under him commence any
legal proceeding against any other party to the agreement or any person
claiming under him in respect of any matter agreed to be referred to
arbitration, any party to such legal proceeding may apply to the court before
which the proceeding are pending to refer the matter to arbitration at any time
before filing a written statement. If it is satisfied that an arbitration
agreement exists, the court refer the parties to arbitration and stay the
proceeding unless the find that the arbitration agreement is void.
Composition
of Arbitral Tribunal
The parties are free to determine the number of
arbitrator. The parties should be appointed the arbitrator within thirty
days. Failing to determine the
arbitrators, the tribunal shall consist of three arbitrators. On that point
such kinks of arbitrator can be appointed. If it is satisfied by the parties,
where there is one man tribunal, District Judge or Justice of the Supreme Court
who is nominated by Chief Justice may be appointed as arbitrator. In
arbitration with three arbitrators, each party shall appoint one arbitrator and
two appointed arbitrator shall appoint third arbitrator who shall be the chair
man of the arbitration tribunal. If a party fails to appoint their arbitrator
within prescribe period or the appointed arbitrator fails to nominate the third
arbitrator, District Judge in case of non-commercial dispute or Justice of
Supreme Court designed by Chief Justice in case of commercial dispute are
appointed as the third arbitrator.
Arbitrator’s mandate can be terminated for the
reason as he withdraws himself from office or he dies or all the parties
terminate his mandate or he is unable to perform his function. On the
termination of the arbitrator’s mandate the replacement of the arbitrator shall
be appointed accordance with above proceedings.
Jurisdiction and Duties of the Tribunal
The arbitral tribunal may rule on its own
jurisdiction on any question as whether there is existence of a valid
arbitration agreement or whether the arbitration tribunal is properly
constituted or whether the arbitration tribunal agreement is against the public
policy or whether agreement is incapable of being performed or what matters
have been submitted to arbitration in accordance with the arbitration of
agreement.
The arbitration tribunal may use mediation,
conciliation or any other procedures at any time during the tribunal proceeding
to encourage the settlement. Where the parties settle the dispute, the
arbitration tribunal shall record the settlement in any form of the arbitral
award on agreed terms. Such arbitral award shall have same status as any other
arbitral award made in respect of the dispute.
The arbitral tribunal shall deal with any of the
dispute submitted to it fairly and impartially on the evidence as quick as
possible and for this purpose each party shall be given reasonable opportunity
to present his case orally or in writing or both, or to examine all the
document and other relevant material file by other party or any other person
concerned before the tribunal. The arbitral tribunal may take evidence by
orally or in writing. Even he may administer on oath.
Unless agreed by the parties, the arbitration
tribunal may appoint expert or legal adviser to report on specific issue to be
determined by the tribunal or appoint assessor tom assist it on technical
matter.
Family
Court Ordinance
The Family Court has been established in 15th
June of 1985 under The Family Court Ordinance. First time mediation was
introduced in family court in Dhaka Judge Court in 2000. After that it extended
in Chittagong from 12th February of 2001, in Khulna from 1st
September, 2001, in Rajshahi from 7th May, 2001. Afterward it
expands all over the court of the country.
Mediation has been denoted in Family Court
Ordinance, 1985 under Section 10, 11, and 13. And also compromise decree has
been prescribed in Section 18 of the Family Court Ordinance[9].
As to the provision of the above Section of the
Family Court Ordinance, when the written statement is filed, the family court
shall fix a date ordinarily of not more than thirty days for pre-trial hearing.
The court shall examine the plaint, the written statement and documents which
filed by the parties and shall hear the parties. At the pre-trial hearing, the
court shall ascertain the point at issue between the parties and attempt to affect
a compromise or reconciliation between the parties, if it is possible for the
court. If no compromise is possible, the court shall frame the issue in the
suit and fix a date for recording evidence.
A family court may hold the whole or any part of the
proceeding under this Ordinance in camera under Section 11 of the Family Court
Ordinance. Even where both the parties to the suit request the court to hold
the proceeding in camera, the court shall do so.
In Section 13 of the said Ordinance it is mentioned
that after the close of evidence of all parties, the family court shall make
another effort to a compromise between the parties. If such compromise is not
possible, the court shall pronounce judgment either or on some future day not
exceeding seven days of which due notice shall be given to the parties of their
agents or advocates and a decree shall follow the judgment The Family Court has
been established in 15th June of 1985 under The Family Court
Ordinance. First time mediation was introduced in family court in Dhaka Judge
Court in 2000. After that it extended in Chittagong from 12th
February of 2001, in Khulna from 1st September, 2001, in Rajshahi
from 7th May, 2001. Afterward it expands all over the court of the
country.
Mediation has been denoted in Family Court
Ordinance, 1985 under Section 10, 11, and 13. And also compromise decree has
been prescribed in Section 18 of the Family Court Ordinance.
As to the provision of the above Section of the
Family Court Ordinance, when the written statement is filed, the family court
shall fix a date ordinarily of not more than thirty days for pre-trial hearing.
The court shall examine the plaint, the written statement and documents which
filed by the parties and shall hear the parties. At the pre-trial hearing, the
court shall ascertain the point at issue between the parties and attempt to
effect a compromise or reconciliation between the parties, if it is possible
for the court. If no compromise is possible, the court shall frame the issue in
the suit and fix a date for recording evidence.
A family court may hold the whole or any part of the
proceeding under this Ordinance in camera under Section 11 of the Family Court
Ordinance. Even where both the parties to the suit request the court to hold
the proceeding in camera, the court shall do so.
In Section 13 of the said Ordinance it is mentioned
that after the close of evidence of all parties, the family court shall make
another effort to a compromise between the parties. If such compromise is not
possible, the court shall pronounce judgment either or on some future day not
exceeding seven days of which due notice shall be given to the parties of their
agents or advocates and a decree shall follow.
Arthorin
Adalat Ain, 2003
As to the provision of the Section 21 of the
Arthorin Adalat Ain, 2003, where the court deems proper may convene a
settlement conference for settlement of dispute after submission of written
statement by defendant in an alternative way keeping pending all proceeding of
the court and the court may ask to the Parties, their lawyers and their
representative to remain present in the settlement conference.
The Judge of the Artho Rin Adalat shall preside over
such conference and hall determines the venue, procedure and function of the
Settlement conference which shall take place in camera. The court shall explain
the point of dispute before the parties, their lawyer and their representative
and shall streamline his endeavors in arriving at a settlement but the court
shall not exert any influence upon the parties to accept his own proposal. The
process of settling the dispute shall be completed within 60 days of passing
order by the court settling the dispute through Settlement Conference until the
time is extended not exceeding 30 days on the basis of written statement of the
disputed parties or the court own initiatives sufficient cause being shown in the record.
The term and conditions of the settlement shall be
recorded in agreement and the parties in dispute shall sign as executor,
lawyers and the representative present shall sign over the agreement as witness[10].
Afterward the court shall pass an order or necessary decree under the provision
of related rule of Order XXIII of the Code of Civil Procedure, 1908.
Eventually, no appeal shall lie in the higher court against any order
pronounced by the court through Settlement Conference under the provision of
this Act.
Where no order has been given for settling the
dispute through Settlement Conference according to Section 21, the court may
keep pending all subsequent proceeding subject to the provision of Section 24
after submission of written by the defendant and may refer the case to lawyers
or may send the dispute to the parties for settlement. The lawyers engaged for
conducting the case may engage a lawyer who is not engaged by neither of the
parties or may engage any retired judge or retired officer as arbitrator in the
interest of settle the dispute on mutual consultation of the parties. The
process of settling the dispute shall be completed within 60 days of passing
order by the court settling the dispute through Settlement Conference until the
time is extended not exceeding 30 days on the basis of written statement of the
disputed parties or the court own initiatives sufficient cause being shown in the record.
The arbitrator shall submit a report to the court on
his arbitration activities without leaking out of the parties. The court shall
give necessary order or pronounce decree on the basis of that report as may be
applicable according to the relevant rules of Order XXIII of the Code of Civil
Procedure, 1908.
The
Bangladesh Labor Code, 2006
As to the provision of this code, where at any time
an employer or a collective bargaining agent finds that an industrial dispute
is likely to raise between the employer and the workers, the employer or the
collective agent shall communicate his or its views in writing to the other
party. Within 15 days from receiving its views, the party shall arrange a
meeting with the other party for collective bargaining and settle the dispute.
Where the receiver of the letter fails to arrange a
meeting within the prescribe period or no settlement can be reached within one
month from the date of first meeting held for settlement of the dispute through
the process of reciprocal dialogue of the both parties, the Government shall
appoint as many persons as it considers necessary by the notification of
official Gazette for the purpose of settle the dispute. Within 10 days of
receipt of such request the conciliator shall start his conciliation and call a
meeting of parties to the dispute for the purpose of bargaining about a
settlement. The parties will open the issue of the dispute before the
conciliator on the fixed date. If the settlement of dispute is arrived at in
the course of conciliation, the conciliator shall send a report to the
Government together with a memorandum of settlement signed by the parties.
If the conciliation fails, the conciliator shall try
to persuade parties to agree to refer the dispute to an arbitrator for
settlement. Where the parties do not agree to refer the dispute to an arbitrator
for settlement the conciliator shall give a certificate to the parties within 3
days.
Where the parties agree to refer
the dispute to an arbitrator, they shall make a joint request in writing for
reference of dispute to an arbitrator agreed upon by the parties. The
arbitrator shall give his award within a period of 30 days from the date on
which the dispute is referred to him. After, he has made award the arbitrator
shall forward to the parties and to the Government. The award of the Arbitrator
shall be final and no appeal shall lie against it[11].
[1]
Act IV of
2003.
[2]
Akhtaruzzaman,
Md., Concept and Laws on Alternative Dispute Resolution and Legal Aid, (70,
University market, katabon, Dhaka, 2007), p.110.
[3]
Paper presented by Mr. K. M. Hasan at National Workshop on “
ADR in quest of a new dimension in Civil Justice delivery system” on October
31, 2002.
[4]
14 (1994)
BLD, 413
[5]
38 DLR,
140
[6]
Obidul
Haq Chowdhury, Hand Book of Muslim Family
Laws, 5th ed., (Dhaka: Alfser Press, 1997), p.60
[7]
Mir Abdul
Halim, The Legal System of Bangladesh
after Separation, 1st ed., (Dhaka:
University Publication, 2008), p.188
[8]
Akhtaruzzaman,
Md., Concept and Laws on Alternative Dispute Resolution and Legal Aid, (70,
University market, katabon, Dhaka, 2007), P.146.
[9]
Halim, Md. Abdul, ADR in
Bangladesh: Issues and Challenges, 2nd Edition (January, 2011), CCB
Foundation, P.62.
[10]
Khair,
Sumaiya, Legal Empowerment for the Poor and Disadvantaged: Strategies
Achievements and Challenges, (Colorline, Dhaka.2008), P.283
[11]
Akhtaruzzaman, Md., Concept
and Laws on Alternative Dispute Resolution and Legal Aid, (70, University
market, katabon, Dhaka, 2007), P.208.
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