ADR in Village Courts Act: Access to justice or long way to go?

Introduction

Justice-a very common and yet one of the most significant concern of a man's life. When a
person is deprived of justice it is not only that person who is being deprived rather it is the
addition of another dimension to the collapsing of the system which is responsible for ensuring
justice to people. Thus the initiatives of establishing Village Courts and application of ADR
system is a milestone for the government of Bangladesh the object of which is to ensure justice
to all rural people and also to protect their rights.

What is ADR?

Alternative Dispute Resolution (ADR) is a process run by independent third parties to try and
resolve disputes between parties outside of the court. It is a spectrum of less costly and more
expeditious alternatives to litigation, where a neutral party assists the disputing parties in
reaching resolution. 1

Most of the developed and developing countries have adopted the ADR system for a more
efficient justice system. In recent years in Bangladesh also there has been significant emphasis
on Alternative Dispute Resolution in order to avoid long litigation process and ensure access to
justice to people in a easy way without any kind of conflict and complexities.

The Concept of Access to Justice

Access to justice is a fundamental right that generally guarantees every person's access to an
independent and impartial process and the opportunity to receive a fair and just trial when that
individual’s liberty or property is at stake. 2

In 1994, the Commonwealth Government appointed the access to justice advisory committee

1
'What Is ADR? - Alternative Dispute Resolution' (Jamsadr.com, 2019) <https://www.jamsadr.com/adr-spectrum/.>
accessed 19 October 2019.
2
Ghetnet Woldegiorgis, 'Access To Justice Under The International Human Rights Framework' (Abyssinialaw.com,
2019)
<https://www.abyssinialaw.com/blog-posts/item/1459-access-to-justice-under-the-international-human-rights-fram
ework.> accessed 19 October 2019.
which stated that access to justice involves-

 Equality of access to legal service

 National equity
 Equality before law

The Universal Declaration of Human rights (UDHR) states that, “everyone has the right to an
effective remedy by the competent national tribunals for acts violating the fundamental rights
granted him by the constitution or by law”.

The Constitution of the Peoples' Republic of Bangladesh also ensures access to justice and
equality before law for all the citizens of the country (article 27).

It is generally understood that the philosophy of access to justice is mostly rooted in the formal
structure with designated roles as per the rules, procedures and arrangements for pertinent
institutions, with policy frameworks, values etc.3 In order to ensure access to justice to the
people of a country an independent and fair judicial system is the first and foremost need.

Philosophy Behind Establishing Village Court

Bangladesh is a developing country with 80% of its population living in rural areas. 4. It is taken
for granted that people living in the village are much more intimate to each other than their
urban counterparts.

As the degree of intimacy is high here, the number of interactions is also high which often leads
to chaos, fights, conflict or undesired disputes. So the usual system of regulating these disputes
is not sufficient enough as the formal justice system of Bangladesh is not only a time
consuming but also a costly and complex system which is in most cases not affordable or out of
reach for simple people living in rural areas. More than 35.82 lakh cases are now pending with
the higher and lower courts across the country, according to statistics placed by Law Minister
Anisul Huq.5Again the decisions made in such format creates a win-lose situation among the
parties in dispute which in the long run creates a sense of rivalry and hatred among them.

Thus to simplify the format and to make justice more speedy and accessible to people Village
3
Monaiam Ahmed, 'Village Court Ful And Final' (2019)
<https://www.academia.edu/32447015/village_court_ful_and_final.pdf> accessed 19 October 2019.
4
'Bangladesh :: People & Population' (Discoverybangladesh.com, 2019)
<https://www.discoverybangladesh.com/meetbangladesh/people.html> accessed 19 October 2019.
5
'More Than 35.82 Lakh Cases Now Pending: Law Minister' (2019)
<https://www.thedailystar.net/country/news/more-3582-lakh-cases-now-pending-law-minister-bangladesh-175882
0> accessed 19 October 2019.
Court works as a tool of alternative dispute resolution. It is run as per the Village Courts Act
2006 amended in 2013 and the Rules 1976.

Legal Framework of Village Courts

According to the Constitution of Bangladesh, one of the fundamental aims of the State is to
realize a society of rule of law, fundamental human rights, equality and justice. With this aim
after the Independence of Bangladesh, it established Village Courts in the rural areas of the
country by enacting the Village Courts Ordinance, 1976 and framing the Village Courts
Rules,1976 to ensure access to justice for the rural poor and marginalized people. The Village
Courts Ordinance was in force till its replacement by the Village Courts Act, 2006. But the
Village Courts Rules are still in force. 6

Formation of Village Court

On the application of an aggrieved party the Chairman of the Union Parishad shall constitute
the Village Court.

The Village court will be composed of a Chairman and four members to be nominated, by each
of the parties to the dispute. One of the two members to be nominated by each party shall be a
member of the Union Parished concerned. The Chairman of the Union Parishad will be the
Chairman of the Village Court.

He will invite the disputant parties to nominate their representatives within 7 days (Rule 10).
After receipt the names of the nominees of the disputant parties he will record the matter in
Form I of the registrar [Rule 7(1)].

The Chairman of the Union Parishad shall be the Chairman of the Village Court, but where he is,
for any reason, unable to act as Chairman or his impartiality is challenged by any party to the
dispute, and then any member of the Union Parishad other than those nominated by the
disputant parties shall be the Chairman of the Court.

If either party to the dispute consists of more than one person the Chairman shall call upon the
persons constituting that party to nominate the two members on their behalf, and if they fail so
to nominate, shall authorize any of such person to do so, and there upon the persons so
authorized shall alone have the right to nominate such members. If any party to the dispute
does not find any member of the Union Parishad to be impartial, he may seek the permission of

6
Monaiam Ahmed, 'Village Court Ful And Final' (2019)
<https://www.academia.edu/32447015/village_court_ful_and_final.pdf> accessed 19 October 2019.
the Chairman to nominate any other person to be a member of the Court in place of the
member of the UnionParishad.

Where members required under this section to be nominated are not nominated within the
prescribed time, the Village Court shall without such members, be deemed to have been validly
constituted and trial shall proceed accordingly (Sec 5.)

If the application is not accepted by the Chairman, he may return the application stating in
writing the causes of refusal [Section4(1)] in such case the aggrieved party may apply to the
Court of Assistant Judge to review the matter within 30 days of refusal [Rule 5(1)]. If the
Assistant Judge is satisfied with the points in application he may return the application to the
Union Parishad Chairman for consideration.

Jurisdiction of the Village Court

A Village Court shall be constituted and shall have jurisdiction to try a case only when the
parties to the dispute ordinarily reside within the limits of the union in which the offence has
been committed or the cause of action has arisen.

If the disputants are residing in two different Unions, Parishad then the Village Court shall be
constituted in the Union, where the offence has been committed or the cause of action has
been arisen. In that case each party shall have the authority to send their nominated
representative to the Village court. (Sec.6)

Decision of the Court and its Review

If the judgment of the court is made unanimously or (4:1) majority or out of four members
appeared 3:1 majority then the decision of the court is binding upon the parties [Sec. 8(1)]. The
decision must be signed by the Chairman of the Village Court and be recorded in Form 4 of the
Rules (Rule 20).

If the decision is made by simple majority of 3:2 then the aggrieved party may appeal to the
Court of First Class Magistrate having such jurisdiction in case of criminal matter or to the Court
of Assistant Judge having such jurisdiction in case of civil matter within 30 days from the date of
decision [Sec. 8 (2) ]. If the Court of Magistrate or Assistant Judge convinced that justice has not
been done, he can set aside or modify the decision or can send back the dispute to the Village
court for review [Sec. 8 (3)].
Initiatives Taken by the Government
The Local Government Division (LGD) of the Ministry of Local Government, Rural Development
and Cooperatives (MoLGRD&C) is implementing AVCB project for creating wider access to
dispute resolutions services for the rural people particularly poor and vulnerable at the
community level.

The AVCB Project provides a window of opportunity for significant interventions for
strengthening the justice system, particularly at the local levels. Recognition of the integrated
interventions required for effective justice delivery have prompted a number of important
interventions aimed at activating national institutions.

First, the separation of the judiciary has been formally achieved through legal and
administrative measures. New recruitments to the lower and superior courts have brought
expectations of greater openness within the judiciary to addressing issues of access to justice
and discrimination.

Several institutions with mandates to address justice related issues, such as the National
Human Rights Commission and the Information Commission, have been established and are
being operationalized, while existing institutions, such as the National Legal Aid Organization
and the Law Reform Commission, are being reconstituted and resourced.

This is the pilot phase of Activating Village Courts in Bangladesh (AVCB) project (2009-2015). 7

Following successful implementation of a Pilot Phase (2009 – 2015), AVCB II Project has been
scaled up to 27 districts covering eight administrative divisions.

Activating Village Courts in Bangladesh Phase II (AVCB II) Project facilitates local authorities in
making village courts functional at 1,080 unions with financial supports and a tri-partnership
with European Union (EU), United Nations Development Programme (UNDP) and the
Government of Bangladesh. 8

Loopholes of ADR in Village Court

The very object of establishing village court or for that matter introducing of ADR system was to
make justice system accessible to people in the most convenient and simple way in the least
time possible so that people are not deprived of justice for a long and uncertain period of time
and also to create a win-win situation for both the parties which is not seen in the normal
judicial system.

7
'Activating Village Courts In Bangladesh (AVC)' (BLAST’s mission is to make the legal system accessible to the poor
and the marginalized., 2019) <https://www.blast.org.bd/index.php?option=com_content&view=article&id=538>
accessed 19 October 2019.
8
'About AVCB II | Activating Village Courts In Bangladesh Project' (Activating Village Courts in Bangladesh Project,
2019) <https://www.villagecourts.org/about-avcb/> accessed 19 October 2019.
But the question arises whether the application of the respective law under which this
alternative system or the village court runs satisfies those objects or if the law itself is sufficient
enough to fulfill those objects.:

 The judge panel of a village court consists of the Union Parishad Chairman as the
head and four other members; of whom two must be Union Parishad Members. As
Unions are the functioning core of these village courts, changes in structure of this
local government body are bound to bring changes in affairs of village courts. Such
an instance has been brought forward through a groundbreaking amendment in the
legislation regulating the 'unions', namely the Local Government (Union Parishad)
Act, 2009. Under section 19A of this Act, a provision newly added in 2015, to
become a UP Chairman, candidates now have to be nominated by political parties or
have to compete as independent candidates. 9

Which means that judicial responsibility is being carried out by an executive person having
political agendas which is in violation of the provisions of Article 22 of the Constitution of the
People's Republic of Bangladesh which states that executive organs of the state must be
separated from the judiciary in order to ensure independence and fair trial. Thus questions
against such judicial decisions in respect of its authenticity and unbiasness will not be
surprising.

 According to section 8(1) and 8(2) of the Village Courts Act,2006, if the decision is
made by simple majority (3:2) then only the aggrieved party can appeal to the Court
of First Class Magistrate having such jurisdiction in case of criminal matter or to the
Court of Assistant Judge having such jurisdiction in case of civil matter within 30 days
from the date of decision otherwise if the decision is made unanimously or 4:1
majority or out of four members appeared 3:1 majority then the decision of the
court is binding upon the parties.

As we know that political parties play vital role in the socio economic development in the rural
area and thus they influence the arbitration of village court also. In such circumstances it can be
an apprehension that in most of the cases the decision can be manipulated and made
unanimous under the influence of these political pressure. But according to the provisions of
the Act an appeal can not be preferred unless the decision is made by a simple majority which
means the remedy provided by the law in case of being aggrieved is not sufficient enough to
prevent such manipulation or misrepresentation.

 As per to the Act the law enforcement agencies are responsible for required
investigation under the law but as we know that these law enforcement agencies
are often surrounded by corruption and show lack of co-operation thus it becomes a
problem for people seeking justice.
 There is a well settled principle which states that ignorance of law is not an excuse.
But if we look at the rural people of our country most of them are uneducated who
9
Law Rights and Preeti Sikder, 'Village Courts: A Dilemma Within...' (The Daily Star, 2019)
<https://www.thedailystar.net/law-our-rights/village-courts-dilemma-within-1204333> accessed 19 October 2019.
 can not even write their names properly. Thus these people not knowing law and
their rights and obligation is not very astonishing. This ignorance or lack of
knowledge is a big hindrance in the way of access to justice to them as they are not
aware of the legal framework of a village court or the ADR process which is being
introduced for smoothening their way of access to justice.
 Again village courts lack of logistic support and proper infrastructure system which is
a barrier in their proper functioning as without required man power and furnished
infrastructure it is very difficult to run a court system which is a need of the
circumstances.

Recommendations
In order to fulfill the object of establishing Village Court and introducing ADR system there must
be some reformations brought in the Act and also in the application of law such as:

 The formation of the Village Court should be done in such a way that the executive
usage should not overpower the judicial righteousness and maintaining the
separation of each organ.
 Proper measures should be taken so that the justice system is not influenced by
political agendas and motives and the poor and distress should not be a victim to it
 The amendment brought in 2013 of having a woman in the judge panel should be
followed mandatorily so that there remains no chance of the decision being biased
towards any particular gender.
 The UP Chairmen, members and secretaries should be properly trained up especially
on legal and procedural aspects of village court. It is most necessary to introduce a
post of Legal Adviser who will be selected from Learned Advocate for the purpose of
helping UP Chairman regarding adjudicating the court matters. 10
 The government should provide proper fund, training and ensure transparency &
accountability of village court.
 The government should take proper measures for creating awareness among the
general people so that they can be aware of their rights.

10
'Village Court: Need Reformation To Ensure Justice | Daily Sun' (Daily Sun, 2019)
<https://www.daily-sun.com/printversion/details/363666/2019/01/13/Village-Court:-Need-reformation-to-ensure-j
ustice> accessed 19 October 2019.
Conclusion
Village court is a milestone initiative for the government of Bangladesh. The main objects of
village court are to provide and ensure justice for all at root level as well as protect rural poor
people. 11 Because often these poor and marginalized people are deprived of their right of
access to justice and they don't even have an idea of their deprivation because they are either
so ignorant or so helpless that they can not even think of fighting for their rights. But
introduction of such judicial mechanism like ADR and establishment of accessible judicial
platforms like village courts are a way of meeting the need of justice of these people who can
not afford to reach the doorstep of our traditional justice system. But only the invention of such
system and platform is not sufficient to fulfill their need. Proper application and
implementation of these initiatives is necessary to satisfy the very object behind taking such
initiatives.

11
Monaiam Ahmed, 'Village Court Ful And Final' (2019)
<https://www.academia.edu/32447015/village_court_ful_and_final.pdf> accessed 19 October 2019.