Reinforcing local government for dispute resolution

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Reinforcing local government for dispute resolution
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Bangladesh offers an interesting case in which informal rural dispute resolution has been institutionalized as an alternative route to justice: the 2006 Village Courts Act sought to combine features of traditional tribunals — Shalish — with the more formal judicial approach offered by the adversarial system inherited from colonialism.

But how successful have the village courts been? The fieldwork I carried out in Bangladesh as part of my visiting research fellowship at the University of Oxford, UK in 2018 to survey popular perceptions of the new village courts suggests they have their own flaws and require further reform.

Informal dispute resolution vs formal justice

Historically, the rural poor and other marginalized people in Bangladesh have been caught between two judicial systems, neither of which has been able to meet their needs.

While the ancestral informal dispute resolution mechanism – Shalish – offers rural people easy access to justice regardless of wealth, gender, caste, and religion, it is also known for unfair decisions based on local power structures and backward norms, as well as draconian enforcement practices.

In contrast, the adversarial judicial system which Bangladesh inherited from colonialism is highly formalized and places great emphasis on due process.

However, the system is incapable of meeting the needs of society, especially in the countryside: fees are unaffordable, delays enormous, procedures impenetrable, corruption rampant, and judges biased against the poor and other marginalized people.

Informal dispute resolution tends to be more accessible and effective, but it often operates in summary or even arbitrary ways.

When complainants are weak and submissive, nobody will speak up for them. On the other hand, nobody comes to participate if there is any complaint against an influential person.

The formal judicial system places more emphasis on procedural justice, but its accessibility and effectiveness are often in doubt.

Only a few people in developing countries can afford to take legal action. In addition to that, the formal judicial system has other problems.

It suffers from ever-growing caseloads, leading to a situation where individual cases can drag on for years if not decades. Bangladesh is a case in point.

On the one hand, Shalish is an ancestral informal dispute resolution mechanism where rural people have easy access to justice regardless of wealth, gender, caste, and religion.

Unfortunately, Shalish is also known for unfair decisions based on local power structures and backward norms, as well as draconian enforcement.

To bridge the gap between informal and formal dispute resolution, Bangladesh redesigned Shalish through the 2006 Village Courts Act.

The village courts aimed to combine the best of Shalish on the one hand (accessibility and effectiveness), and of the formal judicial system on the other (procedural justice).

The 2006 act provided for the establishment of a village court in every Union Parishad (UP). Each village court is comprised of a panel of five: the UP Chair; two other UP members, one of whom is chosen by each party in the dispute; and two additional citizens, who are also chosen by the parties respectively.

To enable access for the most vulnerable groups, fees and other associated costs for submitting a case are very low.

How do people perceive village courts?

It is discovered from fieldwork that, when complainants were weak and submissive, nobody would speak up for them.

On the other hand, they said nobody would participate if there was a complaint against an influential person. If the victim was an opponent of the UP Chair or other UP members, he or she would not get justice.

There was a general view that in the presence of powerful influential people, the victim does not dare to speak the truth: village courts cannot achieve anything because they are biased due to administrative connections, undue influence of ruling political parties, muscle power, and corruption.

People found that, even when a formal court has pronounced its ruling, it is still difficult to get it implemented.

Thus, despite the reform, it remains debatable to what extent village courts actually work for those who need them most.

Given the increasing workload resulting from the decentralization process, the UP Secretary has insufficient capacity to serve village courts.

The rural poor are socially excluded and suffer from discrimination, deterring them from accessing even informal village courts.

Even when they dare to do so, they may not get a fair hearing as procedural justice is undermined by local power imbalances and widespread practices of nepotism and corruption.

Kinship solidarity leads to biased verdicts in favor of relatives. In many cases, village courts rule in favor of a relative, regardless of guilt or innocence.

When complainants are weak and submissive, nobody will speak up for them. On the other hand, nobody comes to participate if there is any complaint against an influential person.

If the victim is an opponent of the UP Chairman or other UP members, he or she will not get justice. Despite negative views, participants were unanimous in preferring village courts over formal courts as it takes too much time to get a final ruling from the latter.

They find that, even when a formal court has pronounced its ruling, it is still difficult to get it implemented. For example, the police might demand a bribe from the plaintiff before arresting the accused.

For meaningful rural judiciary: Policy recommendations

One way to improve the chances for litigants to gain justice from village courts would be to help litigants find affordable and easily approachable solicitors with a good understanding of rural affairs.

Another is to make access easier, for example by helping illiterate people to file cases. A third is to provide training to the UP Chair and other people involved with village courts, sensitizing them to the needs and aspirations of poor and marginal people.

In any case, it is necessary to make sure that nobody can use the power to determine or influence a verdict. UP representatives and panel members need adequate sensitization with gender-friendly behavior.

Whenever a woman’s interest is at stake, at least one woman should be on the panel.

To ensure fairness, policymakers should limit the authority of the UP Chairperson; set clear rules for who should chair village courts when the UP Chairman is seen as partial; and make it a requirement that all sessions must be publicly announced.

The role of people’s representatives such as a member of parliament and local bodies is crucial, as they interact with the people regularly.

Other desiderata include a streamlining of the process for enforcing decisions, a system for proactive judicial supervision of the courts to comply with fundamental rights, and with village court procedure.

While administrative assistance is essential for the smooth running of village courts, Union Parishads are heavily overburdened.

At present, the only functionary available is the UP Secretary. Given the increasing workload resulting from the decentralization process, the UP Secretary has insufficient capacity to serve village courts.

Therefore, the relevant laws should be amended to create a post of Assistant UP Secretary. The Assistant Secretary would provide valuable assistance to the UP Secretary.

He or she would also be the first port of call for all matters relating to village courts.

There have been technical help under the “activating village courts” project implemented by the Ministry of Local Government in partnership with UNDP and the EU Commission.

The project aims to improve access to justice by establishing village courts all across rural Bangladesh. The project should be scaled up throughout the country making sure that provision for the extensive training of court officials (UP Chairmen and other UP members serving on panels) is made mandatory.

Undesirably, the level of community awareness of legal rights and how they might be enforced is extremely limited, especially in remote areas.

In a society largely governed by traditional beliefs and practices, raising people’s awareness of their rights is perhaps the most effective means to combat undesirable practices embedded in a system riven by corruption.

Another obvious reason for corruption is that people sitting on courts do not receive any salary. Even a token salary for the officials serving on village courts might reduce corruption.

Towards effective local government

Informal dispute resolution through village courts has great potential, but marginal and poor sections of rural society in Bangladesh continue to suffer from lack of access to informal justice.

Women in particular are struggling to get their voices heard. Access to informal dispute resolution remains one of the core needs of the poor, who cannot afford to gain access to the formal courts.

My fieldwork suggests that decisions taken by village courts are often discriminatory as perpetrators, who are typically men, are given a safe pass. Justice will never reach the local level unless the rule of law and decentralization of the state truly become a reality.

A truly informed strategy for strengthening local justice will require in-depth and sound quantitative and qualitative research into the demand for justice and the impact of the various justice institutions on the lives of people in rural Bangladesh.

Unlocking the potential of village courts will take considerable political will. Members of parliament and local assemblies must get involved.

The role of people’s representatives such as a member of parliament and local bodies is crucial, as they interact with the people regularly.

Other relevant stakeholders are the media, academics, and NGOs. The United Nations and other donor agencies should appreciate the importance of village courts in protecting the human security of rural communities.

If properly implemented, village courts can play a crucial role in resolving local disputes amicably and thus promoting social safeguards to prevent local conflicts from spiraling out of control.

A truly informed strategy for strengthening local justice will require in-depth and sound quantitative and qualitative research into the demand for justice and the impact of the various justice institutions on the lives of people in rural Bangladesh.

Last but not least, this study claims for the necessary amendments of the village courts act, proper monitoring and supervision of the government, resources, and preparedness as well as the responsiveness of all stakeholders that can ensure effective restorative justice in Bangladesh.

If so, it can play a tremendous role in resolving local disputes amicably and thus promoting social safeguards to avoid further local conflicts spiraling out of control.

(Dr. Mohammad Tarikul Islam is an Associate Professor of the Department of Government and Politics at Jahangirnagar University in Bangladesh. He is the Visiting Scholar of Oxford and Cambridge. Before joining the university, Dr. Islam was serving the United Nations for seven years)

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