Assignment on Justice for Poor Through Village Courts

PREFACE

Village Court Acts, 2006 aims at resolving legal disputes related to any civil and criminal matter also dissolution of marriage, restitution of conjugal relation, dower, maintenance, and guardianship and custody of children. This Ordinance was promulgated in 2006. This law provides that all over in the country. Basically Village Courts shall have no exclusive jurisdiction to entertain, try and dispose of matters relating to the dispute. It is only an effective system of ADR.

Under the Village Court acts, the court does not enjoy any inherent power but a civil court does. Our legal system follows the common law system. Equity was emerged in the common law due to the shortcomings of law. “Equity has come not to destroy the law but to fulfill it” as Maitland remarks. The law, it is evident, cannot meet the ends of justice in all cases at all times. For this reason, the provisions of the family courts ordinance may not be considered as enough to meet the needs of justice. And its failure may frustrate the subject matter of a suit, and the litigant as well.

Since the village courts acts  is the most important code in the field, the seekers of knowledge, the judges, the teachers, the students, the lawyers, the researchers, the advocates, the legislative draftsman’s and a host of others connected with the profession of law were may be benefited to study outcome of these research.

I am interested to find out the relation between Village Courts Acts-2006 and Rights of the poor people, procedural problem and suggested how to be solved the problem of village courts. I want to remark and necessary initiatives in these acts in the perspective and reality of the rural society of Bangladesh. I would like to mention of the village courts acts inconsistency and I will suggest removing these for the favors of greater poor and affected people’s society of Bangladesh.

Introduction

The formal justice system in Bangladesh is under tremendous pressure with much workload and inadequate number of officials and staff to dispose the cases. As a result, the case backlogs add up to the existing pending cases and at present it stands on about half a million cases. It creates a negative impact for the rural poor and vulnerable group of people who cannot afford the expenses of cases and do not have clear understanding of how to get access to justice in the upper courts on some issues that could be easily resolved at the local level. The Ministry of Local Government Division (LGD), UNDP and the European Commission jointly have undertaken a programme titled ‘Activating SVillage Courts in Bangladesh’ to providing support to the justice system through this project in 500 selected Union Parishads (UP) of the country. It also intends to develop capacity of the village court members, elected representatives and support staff. Motivation programme will be carried out in order to sensitize all concerned on the role and functions of village courts and their benefits on the overall justice system.

Shalish social system for informal adjudication of petty disputes both civil and criminal, by local notables, such as matbars (leaders) or shalishkars (adjudicators). Two types of adjudication have been in place in rural Bangladesh from the days of antiquity, these were shalish and the extension of the state’s judicial arm into the rural areas through specific legislation. Normally, the process of a particular shalish starts with interrogating the disputants to ascertain the facts. Then the shalishkars offer their solutions, and seek the opinions of the disputants before; finally, they come to a decision. Although this procedure is found to be uniform throughout the country, there are local variations depending on local customs and tradition. Shalish is supposed to lead to conciliation between the contesting parties. But, in the context of Bangladesh’s rural social structure, shalish seems to have more often than not been used as an appendage of the existing rural power structure, sometimes, of religious bigotry.

The panchayet system in ancient Northern India and elsewhere in the subcontinent, including Bengal, was the lowest tier of local government, which also functioned somewhat as a court having jurisdiction over members of different castes and occupations belonging to the same village and township. The initial development of the pachanyets was a spontaneous phenomenon to meet the social needs, and they were quite independent in their working. Though the kings, or the rulers named otherwise, are reported to have some role in helping these panchayets to get organised at the formative stage, the former seldom interfered with their working. The panchayet had jurisdiction over almost every type of dispute arising in the village community. They decided both civil and criminal cases and their powers were not ordinarily bound within any financial limit. The Muslim rulers later constituted their own system of judicature, which was at variance with the traditional system, but the existing village panchayet was virtually kept untouched. However, the jurisdiction and authority of panchayets suffered decline with the establishment of formal courts for adjudicating civil and criminal cases during the period of British rule in India. The new land system introduced by the British also adversely affected the panchayet justice system. Yet, during the entire British period, the panchayet justice arrangement was never specifically singled out for abrogation and rather, its usefulness was recognised unofficially.

Some historians believe that the village panchayet was either non-existent or very weak in the region where Bangladesh is now located. Hence a highly organised shalish system was unlikely to have operated here at any period of time. The local mediation during the early British period in this part of the subcontinent seems to have comprised adjudication of (i) petty disputes relating to social matters mostly through neighbourhood shalish; and (ii) land related and inter-neighbourhood or inter-village disputes through the zamindar or his agents. Later, as population increased and neighbourhoods expanded from villages, there was both neighbourhood and villaged-based adjudication. Also, with the strength of the zamindari system eroding over time and the growth of the formal courts, adjudication by zamindars or their officials in the rural areas gradually became defunct. In other words, shalish in Bengal villages seems unlikely to have been associated with a well-developed rural local government system. Whatever existed here was highly informal in nature, dictated by the practical situation prevailing at the grassroots level.

It was in this institutional vacuum that the British colonial rulers initiated a move to set up village based courts and benches under the Village Self Government Act of 1919. These courts and benches were to have responsibility to deal with petty offences and disputes at the village levels under the overall supervision of the elected local functionaries (chairmen) of the village based local bodies, ie, the union boards, formed under the same Act. In 1961, the government of Pakistan promulgated two ordinances, namely the Muslim Family Law Ordinance and the Conciliation Courts Ordinance, under which the village courts and benches were also made to deal with minor offences including those related to marriages, polygamy, maintenance, child marriages and rights, and inheritance. In 1976, the government of Bangladesh constituted village courts in all the unions to settle minor criminal and civil disputes. The main objective of the village courts was not to determine right and wrong and punish the wrongdoers but to find an amicable settlement of the disputes. Unfortunately however, lack of clear ideas, corrupt practices, non-cooperation among the local government functionaries and the lack of adequate powers in the hands of the local bodies continued to hinder the working of the village courts and benches since their inception.

The incidence of localised disputes and altercations continued to increase as large masses of people and communities within the village structure, in the region where Bangladesh is located, were increasingly being cramped into small areas and required to share limited resources. Consequently, the village identity took a firmer shape, on the one hand, and the number of neighbourhoods increased, on the other. The village based shalish also emerged either as an addition to or a replacement of the neighbourhood shalish. In this phase, inter-village shalish was also conducted. However, where factional rivalries went beyond control, the village and neighbourhood level shalish broke down and shalish took place at the union level under the leadership of the chairmen/members of village based local bodies, the union parishads. But this was to be carried out not through the formal village court in operation but the informal shalish coming down from tradition. This happened because the formal court was restrictive in two specific ways, ie, in the procedure to be followed and in the degree of punishment and its implementation. Moreover, anything formal could be challenged in the higher courts. So, what rural Bangladesh has at the ground level is (i) a formal court at the union level which operates at a low key, and (ii) the traditional and informal shalish which functions at one or more levels, ie, neighbourhood, village or union, depending on the ground situation.

However, recent studies reveal that the village-based shalish has developed serious functional complications owing to intense factional infighting and rivalries in the villages; localised petty disputes have increasingly been referred to the union parishad (UP) chairmen/members for mediation, but outside the formal village courts. These studies also indicate widespread corruption in the informal shalish conducted by the local government or UP functionaries, including improper attention that is being paid to relevant laws or accepted principles of justice. The pressure of the rich, influence of money or special favour, fear of the local terrorists, and domination of orthodox religious views are identified to be the main bottlenecks responsible for unfairness in shalish. The last one among these seems to be particularly prominent in certain areas of the country where shalish has sometimes acted as an instrument for carrying out the perverse ‘fatwas’ (mostly directed against women) issued and propagated by some local religious leaders. Yet, there are many areas in the country where village level shalish seems to have been operative, for it has the advantage of being prompt to assemble, allow the parties to freely express their opinions, and to provide quick justice.

When a petty dispute is resolved through shalish, the resolution is often a financial settlement. Many offences originate from land disputes and from family disputes which lend themselves more easily to amicable resolutions. Although in petty criminal matters it is preferable to avoid a vindictive approach and seek an approach that resolves the dispute, the predominant tendency is to seek litigation. But litigation ultimately does not result in resolution, and only encourages further divisiveness and enmity among the disputants, in particular, and within the community, in general.

In Bangladesh’s present-day context, anyone interested in the continuation of shalish finds it a real challenge to revive and mould the traditional shalish on the right lines, reflecting the spirit and aspiration of the people. But due to persistent structural-functional problems and the lack of peace and amity within the rural social structure, it seems very difficult to bring about equitable resolution between the conflicting parties. However, one positive development that seems to have been emerging is that some non-government organisations (NGOs) has in recent years come forward to refashion the traditional shalish system. They are conscious of the prime need to ensure neutrality, non-imposition and attaining a ‘win-win situation’ in the mediation process. As part of a priority measure, training for the shalishkars (mostly volunteers) on the legal issues and mediation processes has been introduced by them with a view to overcoming the limitations of the traditional shalish.

Ensuring access to justice is the key to ensure good governance and eventual poverty reduction. In this context, the formal justice system in Bangladesh is under tremendous pressure with huge caseload and experiencing inadequacy of human resources and necessary logistics to dispose of the pending cases. Consequently, the case backlogs add up further to the existing piles of disputes and presently the number stands about two millions. It implicates a negative impact on the lives of rural poor and vulnerable groups who cannot afford the expenses of cases and lacks clear understanding of how to obtain justice in the formal courts, while significant parts of those case backlogs could easily be resolved through the local level justice system.

In this backdrop, the Local Government Division (LGD), Ministry of Local Government, Rural Development and Cooperatives (MoGRDC) has initiated a 5-years long (2009-2013) project ‘Activating Village Courts Project in Bangladesh’ with the partnership of European Commission (EC) and UNDP Bangladesh.

The project is supporting to strengthening the local justice system through activating Village Courts in selected 500 Union Parishads (UP) in the country. Union Parishad is the lowest tier of local government system in Bangladesh. The project is also undertaking several interventions to enhance capacity of the Village Courts (VC) members, elected representatives, community members and other relevant officials in a bid to run the village courts smoothly.Village Courts were introduced in 1976 aiming to create an opportunity to resolve the disputes at the community level to the door steps of poor people without any hassle and at very nominal cost. Putting the importance to the services of village courts the Government of Bangladesh upgraded the ‘Village Courts Ordinance 1976’ with the ‘Village Courts Act 2006’. Theoretically, the Village Courts are statutory courts and are composed of local government (Union Parishad) representatives (as community leaders) and members nominated by disputant parties.

The court is composed with five juries headed by the UP Chairman. Apart from the Chairman, other four members are nominated by the two parties- one from the local community and the other must be a local elected UP member. The underlying argument lies, the disputant parties are able to discuss their problems without any hesitation and can reach to an amicable and sustainable decision and restore the broken relationships. Village courts decisions are equally valued to those of any other formal higher courts of the country. However, village courts can deal both the cases of criminal and civil nature with the ambit of Tk. 25,000.00.

Since the salient efforts of activating the village courts takes place for the first time formally in Bangladesh in selected 500 union parishads on pilot basis, active involvement of the stakeholders and community members with enhanced awareness on the justice system are crucial to succeed the efforts. Amongst other activities, courtyard meeting approached as very effective tool to boost mass awareness on village courts.

Since time immemorial, ‘Shalish’ (mediation) has traditionally been approached as an active tool for resolving local conflicts in rural settings of Bangladesh. It is a practice of gathering village elites and concerned parties (disputants) for the resolution of local disputes. Sometimes, the chairman and members of the Union Parishad are also invited to sit through the proceedings of Shalish. However, shalish generally doesn’t have any recognized rules, regulations or particular size and structure; rather it just depends entirely on the local urges subject to nature and magnitude of the disputes. Therefore, the follow-up of shalish decision always remains at stake.

Following the Village Courts Act 2006, practice of constituting village courts has increased and the local elected representatives’ i.e. local government is much supportive and interested to activate village courts. Village Courts offer the justice services locally with very minimal cost and time. If the local disputes are resolved through village courts, it can lead establishing peace and unity at the locality. Similarly, the effective village courts can enhance restoring societal cohesion to fight against local issues including poverty reduction. 

Jurisdiction of Village Courts under the Village Courts Act, 2006(Act No 19 of 2006) and Conciliation of Disputes (Municipal Areas) Act, (Act No 12 of 2004)zsw

1.          Introduction

Stricter implementation of the provisions of the Village Courts Act as well as those of the Conciliation ni Disputes (Municipal Areas) Act can greatly reduce the number of filing of cases in the ordinary Court »l lowest jurisdiction, both civil and criminal.

Assistant Judges while trying a suit must scrutinize, inter alia, whether the suit is hit by the provisions of the said two Acts.

2.          Naming of the trial institution

The trial institution constituted under the Village Courts Act, 2006 (No 19 of 2006) is called the Village C omi and the institution constituted under Conciliation of Disputes (Municipal Areas) Act, 2004 (Act No \2 of 2004) is called the Conciliation Board.

3.          Bar to try

If an offence/dispute is tried by Village Courts or Conciliation Board no other court shall have jurisdictii try such case or suit.

4.          Areas over which jurisdiction is exercised

All cases relating to offences specified in Part I and to matters specified in Part II of the Schedules of the i\\o Acts are the areas of jurisdiction of the Village Courts and the Conciliation Board.

5.          Territorial Jurisdiction

The Union \\ithin the limits of which the offence has been committed or the cause of action has arisen shall be the territorial jurisdiction of a Village Court where the parties to the disputes ordinarily reside within that Union. Notable, where one of the parties to the dispute resides in one union and the offence lias been committed or the cause of action has arisen in another union, the Village Court is to be constituted in the Union in which the offence has been committed or the cause of action has arisen.

Similar is the case with respect to the jurisdiction of a Conciliation Board.

6.          Pecuniary Jurisdiction

No hard and fast provisions are laid down in any of the Acts as to the extent of pecuniary jurisdiction of either the Village Court or the Conciliation Board but on plain reading of

both the Acts it is presumed that neither the Village Court nor the Conciliation Board can try a matter, where they are to award compensation or order payment of money of more than 25.000 taka.

7.          Composition of Village Court and Conciliation Board

a)              Village Court: Chairman + two members from each of the party to the dispute (where oik
member to be UP member, if possible) =Total member 5.

b)             Conciliation Board: Chairman + two members from each of the party to the dispute (where one
member to be Commissioner, if possible) = Total member 5.

8.    Restricted Sentencing power

The Village Court and the Conciliation Board shall have no pov-ers to pass a sentence of imprisonment or I uk but they can impose fine only in case of willful disobedienc.; to give evidence or to produce document ;is ordered by the Court or the Board.

9.          Finality of decision

F’inally decided matter by the Court or the Board shall not be  in any other Court.

10. Utilization of compensation, fine etc.

Awarding of compensation in cases under Part I or ordering payment of money in matters under Part II I to redress the aggrieved person. But the fact of imposing fine is something different. Fine recovered do form part of the funds of the Union Parisad or the Paurashava as the case may be.

11.        Application or non-application of other laws

The provisions of the Evidence Act, 1872, the Code of Criminal Procedure, 1898 and of the Code of ( nil Procedure, 1908 shall not apply to proceedings before the village Court or the Conciliation Board. Hut Sections 8-1 I of the Oaths Act 1873 shall apply to the said proceedings.

Note:

  1. The Village Courts Ordinance, 1976 (Ordinance No LXI of 1976) is repealed by ACT No. 19 of2006
  2. Conciliation of Disputes (Municipal Areas) Ordinance, 1979 (Ordinance No V of 1979) is repealed by ACT No 12 of 2004.

Md. Bazlur Rahman

(Joint District Judge), Senior Assistant SecretaryMinistry of Law, Justice & Parliamentary Affairs.