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CONTENTS

Introduction .................................................................................................................................................. 2
Objectives of the Study ............................................................................................................................. 2
Methodology of the study ........................................................................................................................ 2
Limitations of the study ............................................................................................................................ 2
Access to Justice and Constitution of Bangladesh ........................................................................................ 3
Background of Introduction of ADR in the UK: ............................................................................................. 3
Necessity of ADR in Bangladesh.................................................................................................................... 5
Pending Cases and need for ADR in Bangladesh: ......................................................................................... 5
Workload over presiding judges ................................................................................................................... 6
Excessive procedural formalism and Corruption: ......................................................................................... 6
Introduction of ADR in Bangladesh ............................................................................................................... 7
Challenges of ADR in Bangladesh.................................................................................................................. 7
(a) Cooperation of the Lawyers: ............................................................................................................... 8
(b) Correction of legal shortcomings ........................................................................................................ 9
(c) Overseeing and developing ADR Jurisprudence: ................................................................................. 9
(d) Introduction of Plea Bargaining: ........................................................................................................ 10
(e) Observance of Law Day ..................................................................................................................... 10
(f) Activating Mobile Court, Village Court etc. ........................................................................................ 10

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INTRODUCTION
Bangladesh judiciary is deadlocked in a vicious cycle of delays and backlogs, which is alarming for ensuring
justice, rule of law and economic development of the country. According to a report of the Bangladesh
Law Commission, there were more than 2.6 million cases pending in district courts till December 31, 2014.
In spite of best effort and full utilization of manpower, it is not easy to combat such alarming backlog
situation without taking recourse to Alternative Dispute Resolution (ADR). For such circumstances, ADR
system has been introduced within the formal justice system to minimize inordinate delays and to reduce
undue litigation costs. At present, a number of statutes in Bangladesh have implemented a judicial
practice of ADR through mediation, conciliation and arbitration. The most notable ADR within the formal
justice system is the one introduced to ordinary civil courts in 2003 by the amendment of Code of Civil
Procedure (CPC), 1908. Though previously ADR was in practice in some special civil courts, sections 89A
and 89B was inserted by this amendment to incorporate the systems of mediation and arbitration of civil
disputes that lie before the court. This amendment gives option to the court to mediate between parties
or refer the dispute to the pleader or the parties themselves (where no pleaders have been engaged) or
to the mediator from the panel to be prepared by the District Judges. In 2006, the CPC was further
amended to insert section discussing the provision of conducting ADR (mediation) during appeal. Despite
the effort, the scheme did not actually work well; there was an option for the court to decide whether the
dispute should be referred for mediation. Thereby, there is an exigent need for further amendments
which would make ADR mandatory.

Objectives of the Study


This assignment has been conducted with the following objectives;
1. To develop an understanding on importance of ADR in Bangladesh;
2. To sketch out its problems.
3. To analyse the current state of ADR in Bangladesh.

Methodology of the study


The methods and techniques of data collection are the key components in an assignment. The outcome
of the assignment depends on methodological base, its appropriateness and proper implementation over
the whole process of the study. The method must be consistent with the objectives of the study that can
cover the whole area of interest. In this study only, secondary data have been collected. Secondary data
have been collected from concerned books, journals, periodicals and other materials.

Limitations of the study


No assignment is free from certain limitations. Following are the limitations:
1.This study has been accomplished within short time. For such time constraint it is not be possible to
collect detailed data and information on the issue.

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ACCESS TO JUSTICE AND CONSTITUTION OF BANGLADESH
As discussed in the first chapter ADR process must be viewed from the perspective of access to justice of
any legal system. The Constitution of Bangladesh guarantees justice to al All Bangladeshi citizens are
guaranteed equal rights of life and personal liberty, besides many other fundamental rights. Article 27 of
the Constitution guarantees equality before law and the equal protection of law. Article 31 ensures that
to enjoy the protection of the law, and to be treated in accordance with law and only in accordance with
law is the inalienable right of every citizen. Article 32 guarantees protection of right to life and personal
liberty. Under Article 44(1) of the right to move the High Court Division under Article 102(1) is itself a
fundamental right. All these are essential for providing access to justice. These rights and equal
opportunities must be provided at all stages of justice dispensation system. In Mohiuddin Farooque vs
Bangladesh1 the Appellate Division observed: "If justice is not easily and equally accessible to every citizen
there then can hardly be any rule of law. If access to justice is limited to the rich, the more advantaged
and more powerful section of the society, then the poor and deprived will have no stake in the rule of
law...... Ready and equal access to justice is a sine qua non for the maintenance of Rule of law.2” In the
same judgment His Lordship Mr. Justice B.B. Roy Chowdhury observes that "It is unthinkable that the
drafters of our constitution had in their mind that the grievances of millions of our people should go
dressed, merely because they are unable to reach the doors of the court owing to abject poverty, illiteracy,
ignorance and disadvantaged condition.3” The spirit of the above judgmental observation signifies the
role of judges, judicial officers and lawyers also. In this regard the Indian Law Commission stated that the
public confidence in the judiciary is of utmost importance. The judiciary has a special role to play in the
task of achieving socio-economic goals enshrined in the Constitution. While maintaining their aloofness
and independence, the judges have to be aware of the social changes in the task of achieving socio-
economic justice for the people

BACKGROUND OF INTRODUCTION OF ADR IN THE UK:


Back in June 1995 Lord Woolf, in his interim report of civil justice in the UK, identified a range of defects
in the civil justice system and they were follows:
(i) too expensive, in that the costs often exceed the value

(iii) too unequal, in that there was a lack of equality system and they were as follows of the claim;

(ii) too slow in bringing cases to a conclusion; between the powerful wealthy litigant and the under-
resourced litigant
(iv) too fragmented in the way in which the system was organized.

Principally Lord Woolf concluded that the civil justice system was excessively adversarial, leading to cases
being managed by the parties and not the courts and to the rules of court all too often being ignored by
the parties, and not enforced by the courts. To redress these problems, he identified a number of
principles which he considered the civil justice system should meet in order to ensure access to justice.

1
49 DLR (AD) (1997) para 71 at pages 1-26
2
49 DLR (AD) (1997) para 71 at page 18 (per Latifur Raman, J)
3
49 DLR (AD) (1997) para 97 at page 24

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The principles which are now part of the new CPR were as follows
(i) litigation should be avoided wherever possible;

(ii) litigation should be less adversarial and more cooperative

(iii) litigation should be less complex;

(iv) the timescale of litigation should be shorter and more certain

(v) the cost of litigation should be more affordable, more predictable and more proportionate to the value,
or to the complexity, of individual cases.

The above principles were implemented by the new Civil Procedure Rules 1999 (CPR) and Access to Justice
Act 1999. The UK courts now have by rule 3.1(2)(b) and (f), the power to adjourn or bring forward a hearing
or to slay the whole or part of any proceedings until a specified date or event. By rule 26.4 the court may
at preliminary stage, stay proceedings to allow settlement of the case. The overriding objectives with the
new CPR, r. 1 are as follows:

Dealing with a case justly includes, so far as is practicable-


(a) ensuring that the parties are on equal footing;

(b) saving expenses;


(c) dealing with the case in ways which are proportionate

(i) to the amount of money involved;

(i) to the importance of the case;

(iii) to the complexity of the issues, and


(iv) to the financial position of each party;
(d) ensuring that it is dealt with expeditiously and fairly; and

(e) allotting to it an appropriate share of the court's resources while taking into account the need to allot
resources to other cases.

These overriding objectives now empower the courts to control the parties and their pleaders in a more
objective destination be it through ADR or any other stage of adjudication.

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NECESSITY OF ADR IN BANGLADESH
ADR cannot be the substitute for adjudication system in general; it has value and importance as
complement to the adjudication system in a country. The need of ADR may be viewed from three different
perspectives: (i) interest of the state; (ii) interest of the stakeholders (judges, lawyers, mediators and
litigants); and (iii) public perception. When a country's judicial system is flooded with unmanageable
pending cases in the context of its limited number of judges, inadequate judge-population ratio,
insufficient budget allocation for the judiciary and lack of infrastructure in the legal system, all three
interests of the state would be affected seriously and the reliance on ADR becomes just a demand of the
time Given that most of the developed and developing countries have gained tremendous success in
reducing pending cases by adopting ADR, Bangladesh should find and try ways and means to develop ADR
modes in the same fashion. Some of the vexing problems of the judicial system in Bangladesh will be
discussed in this chapter highlighting the need for ADR development.

PENDING CASES AND NEED FOR ADR IN BANGLADESH:


One of the most vexed and worrying problem of our judiciary is the backlog of pending cases which will
be evident from the following table.

Pending cases throughout the Country

Year Court Number of Judges Pending


of Judges

2010 AD 8 4430
HCD 94 313735
2011 AD 10 6682
HCD 98 279923
2012 AD 7 9715
HCD 101 297731
2013 AD 10 9289
HCD 95 323446
2014 AD 9 9675
HCD 90 361038
2015 AD 8 8638
HCD 97 394225
2016 AD 9 6600
HCD 95 424994
Annual Report of Supreme Court 2016

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Delay in disposal of cases in law courts, for whatever reasons, has really defeated the purpose for which
the people approach the courts for redressal. It is said that justice delayed is justice denied. And therefore,
there comes the question of finding out a via media to render social justice to the poor and needy who
want their grievances redressed through law courts4. However, most of these problems may be addressed
by introducing ADR as has been done in many developed and developing countries including our
neighbouring countries like India and Pakistan with remarkable success.

WORKLOAD OVER PRESIDING JUDGES


In most of the lower and higher judiciary the workload of the courts and judges are enormous and very
often unmanageable. In view of the day to day pressure and workload on top of already pending
thousands of cases there does not seem to be any alternative but to develop ADR process and at the same
time increase the posts and appointments in the judiciary Inadequate Judge-population ratio in our
country, the ratio between the population and the judges is unrealistic. Therefore, the Judiciary is unable
to cope up with the flood of litigation. Hence, the number of judges needs to be increased in proportion
to the population. Bangladesh has fewer than 9 judges per million people, a figure that compares very
poorly with countries, such as Canada (about 75 per million) and the US (104 per million). Even in India
there are 15 judges for every million people. In other words, for every 1 lakh 18 thousand people there is
only 1 judge in Bangladesh. In 2002, the Indian Supreme Court had directed the Union Government that
the judge-population ratio be raised to 50 per million in a phased manner. Inadequate judge-population
ratio is one of the main causes of delay in disposal of pending cases in Bangladesh. Less the rate of disposal
improves, the backlog would keep mounting and to improve the situation there does not seem any
alternative but to raise the number of judges and at the same time speed up the ADR process in all
jurisdictions of litigation.

EXCESSIVE PROCEDURAL FORMALISM AND CORRUPTION:


Excessive procedural formalisms and administrative complexities block the fling, resolution process and
lastly the outcome of even relatively simple cases brought by socially weakest segments of the population
in Bangladesh. Another aspect that seems to impede effective judicial responses is the alleged corruption
among bench clerks, bench officers in the Supreme Court and lower court judges in Bangladesh, involving
primarily political interference and influence peddling as the only way to obtain a decision. It has been
repeatedly reported by both local and international agencies that justice officials are influenced by
powerful economic groups, and people who do not have the means to influence decisions have no access
to the system. Transparency International indicated in its 2005 report that the judiciary is the fourth most
corrupt institution in the country. Although ADR development has less relevance with these problems,
the development of ADR jurisprudence in the country will certainly have positive impact on various
aspects of irregularity in justice dispensation. This is because if ADR process can inject transparency and
speed up dispensation rate workload of judges, bench clerks and backlog of cases will be reduced which
will certainly lead to transparency and easy access for the poor.

4
Indian Law Commission, Need for Justice-dispensation through ADR etc. Report No. 222, April, 2009 at
page 17.

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INTRODUCTION OF ADR IN BANGLADESH
The third chapter of this book deals with the history of ADR process in different legislations in Bangladesh.
Apart from introducing ADR mechanism in some special legislations, ADR mechanism has been introduced
for the first time in 2003 by way of the Code of Civil Procedure (Amendment) Act, 2003 (Act No IV of 2003)
which was enacted on the 27h February, 2003 and given effect to from the 1st July, 2003. This Act created
three new sections designed for ADR mechanism in all civil suits. This is where the attention of most of
the judges, lawyers, researchers, academic people and the Government would be drawn because of the
fact the working out with these provisions will have bearing impact on the reduction of highest number
of pending civil cases throughout the country. Every effort should be given both by the Supreme Court
and the Government so that the new system can be made a successful vehicle of reduction of cases, access
to justice to poor and easy and speedy justice delivery. More than half of total number of civil litigation in
Bangladesh deals with land dispute. Serious thoughts must be given in this area, even by introducing a
pilot project of ADR, so that these suits may be resolved through ADR if we want to reduce the number of
pending cases and reap the benefit of ADR.

CHALLENGES OF ADR IN BANGLADESH


Six years have passed since ADR was introduced in the CPC back in 2003. However, no official statistics on
the achievement of ADR is available either at the Ministry of Law or in the Supreme Court5. Without
substantive reports and statistics from the respective courts it is very difficult to predict how successful
the new system of ADR has been and what needs to be done further to develop the system. One thing is
crystal clear from the statistics of pending cases that in last five years situation has not improved at all;
rather it has deteriorated as the number of pending cases keeps mounting.

Although ADR provisions have been incorporated in the CPC and some other special laws, some specific
challenges for further developments need to be addressed immediately: first, overseeing the functioning
of the system of ADR and its further development; second, removing the shortcomings of the provisions
of ADR in the CPC; third, introduction of ADR process in the criminal cases in the form of plea bargaining
must be introduced with statutory intervention. Most of the countries including India have introduced
provision for mediation and conciliation at a pre-litigation stage and we should start the system as soon
as possible. This should be of prime importance in view of the fact that ADR process can be of great help
to strengthen the legal framework, which in turn can certainly bring about changes so that people can get
justice quicker

5
www.lawcommissionbangladesh.org/reports.htm

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The above aspects of challenges may be further be discussed under the following heads
(a) Cooperation of the Lawyers

(b) Correction of legal shortcomings

(c) Overseeing and Developing ADR Jurisprudence

(d) Introduction of plea bargaining

(e) Observance of Law Day

(f) Activating Mobile Court, Village Court etc.

(a) Cooperation of the Lawyers:


Lawyer community may be against the introduction of ADR because they feel it will eat into their share of
the pie. One of the main causes of delay in disposal of cases lies in dilatory tactics played by lawyers by
way of seeking repeated time petitions. In November 2004 at a workshop for district judges in Chennai on
access to justice, each participant was asked to respond to two questions
(i) Please recount an instance where the judge had been able to ensure effective access to
justice; and
(ii) Please identify principal barriers to justice.
For most judges the positive reply was in successfully encouraging parties to resolve a long-pending
dispute through a mediated settlement outside the court. Among the principal barrier to justice they
identified lawyers and surprisingly the laws themselves6.In view of other societies our legal profession
must come up from the traditional bonds of fees and money. Public interest has to be its motto and service
in the cause of justice its creed Mahatma Gandhi was a barrister who practiced without compromising
truth. Abraham Lincoln said: "Discourage litigation, persuade your neighbours to compromise whenever
you can. Point out to them how the nominal winner is often a real loser in fees, expenses and time7.” The
Indian Law Commission has also suggested that an inch of change cannot be brought about if the
advocates do not work in accordance with the responsibility that is cast upon them by the Constitution.
Every lawyer is vested with the responsibility to foster the rule of law and dominance of the Constitution8.
In this regard training of lawyers in ADR process and developing their motivation and skill in the light of
experiences earned in the neighbouring countries is of prime importance. They must be give assurance
that ADR will not adversely affect them financially but will open up new horizons for them. A successful
mediation lawyer will always attract new clients wanting to try mediation who would otherwise have

6
S. Murlidhar, Access to Justice in India, published in 545 seminars, January

2005 at http:/www.ielrc.org/content/no501 html (accessed on 10.02 2010).


7
Law Commission of India, Reforms in the Judiciary- Some Suggestions,

Report No. 230, August, 2009, at page 23.


8
Law Commission of India, Reforms in the Judiciary Some Suggestions
Report No. 230, August, 2009, at page 31.

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shunned the court9 At the same time the courts must be empowered with necessary provision to impose
fine or other measures in case a pleader or party unreasonably refuses to take part in ADR proceedings.

(b) Correction of legal shortcomings


In Chapter seven of this book some important defects and shortcomings along with some
recommendations have been discussed with regard to ADR provisions incorporated by the Code of Civil
Procedure (Amendment) Act, 2003. It seems that before incorporating the provisions of ADR in the CPC
back in 2003 proper attention was not given to the existing provisions in laws in neighbouring countries.
The success of ADR is being blocked by these shortcomings and the Government should consider
correcting these shortcomings as soon as possible

(c) Overseeing and developing ADR Jurisprudence:


Like any other legal institution ADR should be nourished and developed in a positive manner. The success
of ADR jurisprudence will depend on some factors like: (i) overseeing and evaluation of working of ADR
mechanisms and taking initiatives to improve it further; (ii) build up mediation infrastructure with
professionalism and quality among mediators (ii) raising awareness about ADR among litigants and public.
With regard to these both the Supreme Court and the Government should work together
First, it is frustrating to see that the Supreme Court has started dropping the updating of case statistics of
District Courts in its annual report. All district courts are now under the direct supervision of the Supreme
Court and if the Supreme Court report does not contain the activities of the District Courts, how will
institutions like Law Commission, researcher bodies and people know about the progress of its public
functions and suggest necessary recommendations? It is also the responsibility of the Supreme Court to
find faults and shortcomings in the functioning of any new legal mechanism like ADR and suggest the
Government of the day to bring necessary amendments in the law or rules

Second, both the Ministry of Law and the Supreme Court should maintain data and statistics of ADR
proceedings and their effectiveness, associated shortcomings and recommendations of presiding judges
and in view of the feedbacks action should be taken periodically to improve the situation.
Third, the success of an ADR program depends on the quality and reputation of the mediators or
arbitrators employed by the system. Selection and training are erotically important here. In addition, ADR
programs should incorporate safeguards to ensure mediator and arbitrator impartiality and quality,
including procedures for regular evaluation and oversight. The effectiveness of an ADR system depends
not only on the selection and training of credible mediators or arbitrators, but also on procedures to
maintain their impartiality (and the reception of impartiality), as well as procedures to monitor and correct
poor performance. Like any other system we need to develop a model mediation procedure or code in
this regard to be followed by every mediator However, this clement of infrastructure of ADR jurisprudence
will develop gradually and cannot be achieved over night

9
K M. Hasan, former CJ, A Report on Mediation in the Family Courts

Bangladesh Experience, published by BLAST in March, 2008

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Fourth, with regard to encouraging lawyers and Bars in ADR proceedings some recommendations have
been made in chapter seven of this book that provisions of 'Advocate-of-the year' and Mediator-of-the
year' should be made by enacting laws. This will certainly bring positive changes towards the specialisation
of ADR mechanism in the country

(d) Introduction of Plea Bargaining:


The workload and appalling condition of pending cases is more vulnerable in criminal side compared to
civil side of justice system. As of December, 2006, a total of 7,69,582 criminal cases are pending before
lower courts (2,05,211 in Sessions Courts and 5,64,371 in Magistrates' courts) against a limited number
of 583 judges and magistrates (64 Sessions Judges 98 Additional Sessions Judges, 583 Magistrates of which
all are not trial magistrates10). To get rid of this problem it is urgently needed to introduce plea bargaining
provisions in the CrPC.

(e) Observance of Law Day


Like India and other developed countries, a Law Day should be observed throughout the judiciary to
strengthen the heritage of liberty, justice and equality under the law; in all courts and do self-
introspection, highlight their achievement in ADR and other judicial reform activities and find solution for
the shortcomings

(f) Activating Mobile Court, Village Court etc.


For petty offences and cases Village Courts and Conciliation Board must be strengthened. Mobile courts
headed by judicial magistrates should also be set up which would not only educate the rural folk about
their rights and responsibilities but will also provide swift justice and create a feeling of law and judiciary
being very close to them.

CONCLUSION
Despite its success over the past three decades, ADR is not the appropriate choice for all disputants or all
legal disputes. Many individuals and entities still resist ADR because it lacks the substantive, procedural,
and evidentiary protections available in formal civil litigation. For example, parties to ADR typically waive
their rights to object to evidence that might be deemed inadmissible under the rules of court. Hearsay
evidence is a common example of evidence that is considered by the parties and intermediaries in ADR
forums but that is generally excluded from civil trials. If a disputant believes that he or she would be
sacrificing too many rights and protections by waiving the formalities of civil litigation, ADR will not be the
appropriate method of dispute resolution.

10
Legal System of Bangladesh, 4th edn (Dhaka: CCB
Foundation: 2009) at chapter XIX

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BIBLIOGRAPHY & WEBLIOGRAPHY

1. Halim, Md. Abdul (2011); Text Book on ADR IN BANGLADESH: ISSUES AND CHALLENGES, CCB
Foundation, Dhaka.
2. Rahman, Khaledur (2018); Text Book on Alternative Dispute Resolution & Legal Aid, Law Palace
Innovation For Reformation, Dhaka.
3. https://adr.findlaw.com/arbitration/arbitration-overview.html
4. http://www.supremecourt.gov.bd/resources/contents/Annual_Report_2016.pdf

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