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6 July, 2018 00:00 00 AM
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Rural justice system

Theoretically village courts seem to be pro-poor and the purpose of activating these courts is to strengthen rural justice system as well as to ensure access to justice and fair trial to the rural community
Mohammad Rafiqul Islam Talukdar
Rural justice system

Studies reveal that the poor people in Bangladesh have very limited access to state courts. It has made them interested in local justice systems for resolving their disputes. But the local informal justice system shalish becomes de facto with corruption, biasness and imposition of decisions including fatwa. NGO-led alternative dispute resolution (ADR) - another non-state rural justice system - is a good one but new in Bangladesh, and yet to be fully scaled-up everywhere. Therefore, the state-led rural justice system - the Village Court - a quasi-judicial system, might have an opportune position for ensuring access to justice to the rural community under the legal framework and rule bound process.

Notably, there are two types of state-led local justice system - ‘Arbitration Council’ and ‘Village Courts’. The former one deals with family matters in both urban and rural areas under the ‘Muslim Family Laws Ordinance 1961’, while the later one was originally established under the ‘Village Courts Ordinance 1976’ to deal with petty criminal and civil disputes in rural Bangladesh. In practice such court was not active. In 2006, Village Courts were constituted again with the provisions of the ‘Village Courts Act 2006’, which has now subsequently adopted with the ‘Village Courts (Revision) Act, 2013’.

According to the Act, the number of judges in a village court would be five: four equally nominated by conflicting groups, out of which usually two from UP members, while chairman shall be the chief of the jurors.  The revised law in September 2013 has strengthened the provision of mediation for compromise that was implied in the Village Courts Rules, 1976. The revised Act also empowers the village courts with the power of awarding compensation/decree/property worth of BDT 75000, instead of the previous limit of BDT 25000. The amendment also holds a built-in mandatory provision of inclusion of a woman member by the parties in forming five members judges panel, in the case of resolving matters related to the interest of minors and/or women. The revised Act allows to tackle the counterfeit attempts, for example, it has provision of fining up to BDT 5000 for filing a false case. Also, for the contempt of village court or non-compliance of its order, the respective party can be fined up to BDT 1000.

Union Parishads must assume the responsibility of functioning village courts according to the law. Thus, the village courts formally exist at all UPs in Bangladesh although these are predominantly sedentary in most of the cases. Government takes phase by phase implementation strategy with the Village Courts Act (2006 and its revision in 2013) to activate village courts across the country, while the Activating Village Courts in Bangladesh (AVCB) project is a commendable instrumental here.

Theoretically village courts seem to be pro-poor and the purpose of activating these courts is to strengthen rural justice system as well as to ensure access to justice and fair trial to the rural community, particularly for its vulnerable groups. However, in an interview, conducted by two research staff members of BIGD-BRAC University, Advocate Sultana Kamal opines that village courts are not commonly functioning well because there is a lack of genuine interest among councillors and chairmen of UPs, and in many cases, they still do prefer conducting shalish.

Further to this, in a discussion with the AVCB Project Manager, few concerns have raised, for instance, whether cost associated with village courts functioning is a burden for UPs or are they adequately funded? Do they have enough staff resource to try cases at village courts? Acknowledging these as critical concerns, AVCB Project Manager opines that generally UPs have neither additional funds nor support staff to make the village courts functional.   AVCB Project Manager, however, further argues that therefore the pilot project exists. The project provides technical and financial support to building the institutional capacity of UPs through tailor-made trainings, installation of court benches, provision of Village Court forms and formats for efficient case management.

Also, discussion with the concerned Programme Analyst of UNDP-Bangladesh indicates that development partners are strongly interested in supporting the nationwide coverage of the local justice services through effectively activating village courts, but this will require the Government’s readiness and compulsion.

Nonetheless, there are three further legal concerns here: i) Are the jurors legally/technically capable to try cases? ii) To what extent village courts are capable to try cases, which are transferred by the magistrate court? iii) Is there any conflict with state structure - Judiciary vs. Executive?  

Discussion with practitioners reveals that the jurors are legally authorised to endow with verdict in village courts by the Village Courts Act, 2006 and the Village Courts (Revision) Act, 2013. Their social technical capability is inbuilt in their social obligations, while legal technical competence is being tailored though capacity building initiatives of the project, which allow them, even to try confidently the cases transferred to them by the Assistant Judge or Magistrate courts.

Regarding the last concern, it seems disagreement given the state structure: Judiciary Vs Executive. Union Parishads fall under the executive organ of the state, while village court affairs are judicial matters. At an interview in 2015, local government expert Dr. Tofail Ahmed, argues that the Village Courts Act, 2006 as well as its successive revision contradicts with the spirit of the Article 22 of the Constitution of the People’s Republic of Bangladesh. He also opines in an OpEd, published on February 25, 2012 in Prothom Alo, that the establishment of courts and operating judicial activities under the Village Courts Act are not acceptable. Considering the fact of separation of judiciary on Article 22 of the constitution, dealing of judicial matters by political persons could not be legitimate. Also, the jurors here are neither educated on judicial matters nor well trained or efficient on legal affairs. Even they do not have any professional oath of impartiality.

In conclusion, the state-led rural justice system village court is a de facto one considering the spirit of separation of judiciary, even though the system is developed under the specific law legislated by the legislature. Nonetheless, the reality of the formal justice system in Bangladesh needs to be realized. A note on the AVCB project in its website addresses that the formal justice system in Bangladesh is under tremendous pressure with much workload and inadequate number of officials and staff to dispose the cases. Furthermore, studies, for instance, Jahan and Stapleton (2013) acknowledge the fact that village court as a system has gained acceptance both with the government and the community. Therefore, the nation-wide replication of the pilot experiences is a must and very urgent.

The writer is a development researcher.

Email: rafiqul.talukdar@gmail.com

 

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Editor : M. Shamsur Rahman
Published by the Editor on behalf of Independent Publications Limited at Media Printers, 446/H, Tejgaon I/A, Dhaka-1215.
Editorial, News & Commercial Offices : Beximco Media Complex, 149-150 Tejgaon I/A, Dhaka-1208, Bangladesh. GPO Box No. 934, Dhaka-1000.

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