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Union
Parishad in dispute resolution
Anisur
Rahman
One
of the old traditions of the Indian Subcontinent is to
settle disputes by the elder and learned members of the
society through negotiation or conciliation. The panchayat
system consists of local elder persons had been existed
in the rural area since from the Mughal period. All petty
disputes of the locality were dissolved by the panchayat
then. In Bangladesh though we have no panchayat
system, such type of dispute resolution outside the court
is a common phenomenon in the rural area. It is shalishi
(mediation). Petty disputes whether civil or criminal
in nature have been resolved through shalishi.
Sometimes grave criminal offences are also resolved through
the shalishi to avoid long period of adjudication
in the court.
We have the three hundred years old Union Parishad (UP)
as a lowest tier of the administrative unit. From the
British period this local administrative tier has been
played a significant role in rural development. It performs
some judicial functions too. Besides the regular tasks,
chairman of the Union Parishad has to conduct many shalishi.
But absence of recognition and lack of manpower hinders
UPs to play an effective role in dispute settlement. As
a result shalishi takes place frequently in the
villages, which sometimes leads to misinterpretation of
law, i.e. fatwa.
photo:ifad.org |
The
informal dispute settlement
Shalishi is one kind of mediation where one
or more than one persons were nominated by the disputant
parties to assist them (disputant parties) to reach in
an agreed settlement. The nominated person/persons entrusted
to make a settlement of the dispute are called 'Shalish'
and the meeting is called 'Shalishi'. It is very
informal social meeting where the invited person/persons
hear the disputant parties very carefully and try to chalk
out the main issues of the dispute. They assist the disputant
parties to sort their problem out themselves. The shalish
gives its efforts to bring the disputant parties close
to the settlement instead of pronouncing their judgement/own
views. There have no formal proceedings in the shalishi.
The disputant parties disclose their causes of dispute
orally before the shalish. Sometimes they submit
documents to substantiate their claim. Generally there
arise no question of witnesses but the shalish
may hear the witnesses in some cases to determine the
core issues. The witnesses are never examined. There is
also no advocate to proceed the matter in dispute. After
determining the issues of the dispute the shalish
gives some outline for the disputant parties to reach
in an agreed settlement.
What
type of cases could be dealt by Shalish?
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, 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.
New
avenue for settlement of dispute
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,
It
will also not solve the problem of backlog of cases in
the court. One will have to wait for the date of hearing
of the case to inform the court about their intention
of mediation and this kind of mediation does not give
any relief to the disputant parties since they will have
to bear the fees of the mediator. Here the advocate or
any other person may be hired for mediation.
Role of the Union Parishad
The Union Parishad does not have significant role in conducting
shalishi except forming an Arbitration Council
under the Muslim Family Laws Ordinance 1961 to deal with
dissolution of marriage and polygamy. However, chairman
of the Union Parishad is used to conduct shalishi
personally within his Union. Union Parishad is not recognised
as an institution for alternative dispute settlement.
The Local Government (Union Parishad) Ordinance 1983 also
does not provide any role for the Union Parishad to conduct
shalishi. The Union Parishad has been conducting
trial of some petty offences under the Village Court Ordinance
1976.
But
this is not shalishi. Though the procedure of
the Village Court is very informal it is being treated
like a court. It has power to issue summon to the witnesses
to present in the Court or to summon someone to produce
some documents required by the court which is inconsistent
with the concept of shalishi. It is not the trial
of any offence. Here the invited person/persons try to
help the disputant parties to agree on a settlement. They
act like mediator between the parties. The shalish
never judge the guilt of one party nor do they pronounce
their own judgement/views. On the other hand village court
is constituted after receiving an application from someone
to form a court to try the guilt of another person. It
usually pronounces its own judgement and if one person
is found guilty it may order the perpetrator to compensate
the victim.
What
could be done?
It is the fundamental right of every citizen to get steady
justice. But this constitutional guarantee becomes a farce
due to the backlog of cases in the court. Besides, it
is very hard for the poor to afford the necessary court
expenses to take recourse to the court. Here the UP could
play an effective role. Since UP is the nearest institution
of the people it can play the key role to resolve dispute
through shalishi. Mitigation of local dispute
through the UP will reduce the overburden of cases in
the courts. Now a days many non-governmental human rights
organisations extend their hands to resolve the disputes
through mediation. But none is for Union Parishad, the
age-old people's organisation to make it as a centre for
alternative dispute resolution. The Union Parishad could
be the best alternative which will ensure the right to
justice of the common people. Is there any meaning of
right to justice without 'access to justice'?
The
author is a legal analyst and an advocate.
