Portal:Professional Development/Intro

COURT OF CONSCIENCE'

A Bangladesh Model of Mediation Mechanism

A pioneering ADR initiative, based on intensive research on ‘Developing a Consensual Justice System in Bangladesh’

Researched & Developed by Dr BELAL HUSAIN JOY

International communities and countries are highly concerned about huge wastage of ‘human energy’, which causes conflicts and in many cases ending up in litigations that could have been turned to ‘human resource’, utilizing their full potentials, talents and expertise through their active participation to resolve their disputes and differences to progress and prosper and to live happily together; and that we could make in Bangladesh too; all we need is to activate the philosophic stand of Barek Obama’s slogan ‘change we can’. Bringing changes to resolving disputes through active participation of human resource is the rationality of ‘Mediation’, which is a vital component of ‘Social Justice’ of Dr Amarta Sen and ‘Social Business’ of Dr Md. Yunus and ‘Social Democracy’ of Sonia Gandhi. It is also of paramount importance, to effectively institutionalize ‘Democracy’ and ‘Equality of Justice’, ensured in the Constitution of the People’s Republic of Bangladesh. Mediation is, indeed, a transparent and totally participatory process, capable to beat corruption, of which our Hon’ble Chief Justice has expressed his concerns in his meetings with the members of the judiciary. Mr. Justice ABM Khairul Haque advised the judges to dispose of cases and pass orders on the basis of documents, laws, and above all their consciences. And in line, the Hon’ble Prime Minister Sheikh Hasina called upon the citizens to ‘resolve their disputes through ADR’ in one of her parliamentary speeches; through actively supporting the Judiciary by practicing ADR Mechanisms to ensure equality of justice for all citizens.

In Bangladesh, most of the lawyers are cautious in accepting cases and briefs observing that the formal justice system is far too expensive comparing with the per head national income, in most cases, clients have to sell their assets or borrow money to pay legal fees, it takes too long to get the final verdict from a court of law, that again, at the end, infructuate the whole purpose of the litigation once the verdict is pronounced; it is sometimes more painful to enforce the judgment for varied socio-economic-political and bureaucratic complexities; it is even more frustrating observing that only a limited number of lawyers and judges have occasional training, and do not have any back up of compulsory continued training program, resulting lesser professionalism amongst lawyers and judges, and that is also partly responsible for constant increase of disputes and conflicts and deterioration of degree of conscience in our society today.

We are, therefore, desperately searching for a lego-judicial concept, to bypass the formal justice system, which is participatory and democratic, to restore day to day disputes and conflicts arises in relations to personal & family, lands & properties, business, commerce & industries, finance, employment and even in diplomatic and political conflicts of national and international levels.

Following the ancient ‘panchayat’ of Dharmashastra period, and ‘samaya’ of kingship period as mentioned in Brihashpati and ‘kazis’ of Muslim and Mughal Rulers; Panchayet was effectively introduced by the British rulers alongside with judicial justice system in Indo-Pak-Bangla sub-continent. Today in Britain, they have introduced ADR in their own land to complement their formal justice system. Here, in our sub-continent, India has introduced ADR in the form of ‘Lok Adalat’ (people’s court) in line with the ‘Private Tribunals’ of the mid-age, and Bangladesh has changed its laws to encourage introducing ADR mechanisms, in particular Mediation and Arbitration. Although the progress is slow due to mind sets of the prominent stakeholders, the litigants and disputants are not seating idle, they are applying different dispute resolution processes to resolve their disputes and differences arise in their own communities. Legal and judicial researchers and scholars have undertaken research initiatives to develop concepts and study feasibility of applying consensual justice system using ADR mechanisms.

This article, being extracted from a comprehensive study, the researcher strongly believes that peace and tranquility can be established within men, families, communities and societies at large only by applying natural justice system through development of consensual dispute resolution process, to finally establish and run courts of conscience, the original, the most practical approach – the mechanics of resolving disputes & differences (2Ds) and controversies & conflicts (2Cs), with an identical form under the title ‘Court of Conscience’ (Bibeker Adalat).

ADR: Conflicting Perspectives: In 2003, when CPC was amended and 89A was incorporated, it was found to be centered on judicial mediation with microscopic provision for private mediation and bar-sponsored mediation, drafted with the aid and assistance of the west, but in line with the objects and functions of the “Ma Xiwu Trial Model of Court Mediation” in China. Some authorities do claim that the modern court mediation system, in existence, even in the west, was originated from China.

Since, the year 2001, we have Shalish Ain, which is exclusively meant for ‘Arbitration’ to resolve domestic and international disputes. Side by side, like panchayat, we also have Salish, widely used as a social mechanism to settle petty disputes of both civil and criminal, by local respected elders, in rural Bangladesh, who have hardly any knowledge of existence of Salish Ain 2001. Such salish is in existence in Bangladesh from the ancient days, which is effectively more in line with mediation.

ADR: Practice and Progress: Different governments in different times claimed considerable success of using ADR mechanisms in Bangladesh, mostly under Family and Artha Rin Laws, especially since 2003. But, the fact remains that there are about 18,00,000 cases pending in all over the country, which is increasing everyday at a galloping speed. To handle the pressure, we have only about 1400 judges from the bottom to the highest tier of the judiciary. Realizing the constraints, a bill was passed in Parliament on 23 March 2010, to introduce ADR System to resolve a huge backlog of cases out of court. Government expressed its intention to make ADR compulsory, increase number of judges and to introduce ADR in the criminal courts to resolve compoundable offences. All are good, but extensive research must be undertaken before the laws are passed and initiatives are finalized for implementation, mainly to identify the barriers and the approaches to follow to overcome them, otherwise, a judicial hazard may occur to add to huge backlog of cases.

Government mechanisms must keep in mind that ADR initiatives undertaken so far, were not successful; mainly because (1) lack of awareness of ADR among litigants and disputants (2) mediation is based on the desire of the judges and they are worried about losing their authorities & jurisdictions (3) lawyers are afraid of losing their earnings (4) lack of government initiative in creating awareness, undertaking training programs, providing ADR services and installing appropriate monitoring process (5) lack of research on ADR jurisprudence (6) excessive dependence on foreign experts and donors etc. Hence, government must do practical planning under Public-Private Partnership to increase awareness, draw appropriate training programs, setting cells for mediation service providers and monitor them to measure their efficiency and effectiveness.

ADR: Analyzing Judicial & Consensual Justice System: Reading Socrates’ view of Justice, I find that ‘every single soul has a mind of making decision with appropriate reasoning’, ‘every single human being has spirit to carry out the decision’ and ‘every single person has emotion but desire to exercise self-control’. Here, reason, spirit and desire are the common elements of all individual souls of all times. They are in-combined the basis of his view of justice.

In resolving disputes or conflicts, all the above three elements of individual human souls are present in any justice system, whether it is ‘Judicial Justice System’ [JJS] or ‘Consensual Justice System’ [CJS]. JJS may act in dynamic form ignoring public consensus in giving verdict but CJS always act in activist form to accommodate public consensus in helping to reach an agreement. JJS nurtures animosity, distortion and distrust; on the other hand, CJS makes prodigious contribution towards acrimony, delay and cost. To me, the basic difference between JJS and CJS is ‘human’ and ‘humane’ respectively. JJS awards the winners and punish the losers, on the other hand, CJS is based on social consciousness and moral obligation with voluntary participation to restore social harmony and peace; and both with reasoning, spirit and desire of the individuals involved in the dispute or conflict.

Analyzing the theoretical and practical approaches and considering the socio-economic and political conditions in Bangladesh, CJS is essential to be institutionalized and practice in mainstream to complement the JJS, in respect of bringing in better effectiveness in ‘access to justice’, ‘human rights’, ‘rule of law’ and ‘equality of justice’ to all classes of the society, fighting back the vices of lost conscience.

Developing a Consensual Justice System: Towards the above ends, the researcher has undertaken a mammoth venture under CCS Methodology of appraising the changes of ADR Laws and Legal & Judicial System; assessing the socio-economic and political challenges, with special consideration to citizens’ awareness, access to justice, workload of the judges and Rule of Law; to identify appropriate strategies with the primary object of developing a consensual (ancillary to adjudication) Justice System in Bangladesh; which ultimately led the researcher to design (1) Model Mediation Training Programs and actively delivered the same as a pilot project and trained more than 400 Lawyers, Judges and Sector Leaders from Bangladesh and SAAC countries; applied (2) Model Rules and (3)  Model Code of Conducts; and experimented with the (4) Model Processes and Techniques as a guide to practice Mediation in the ‘Court of Conscience’ (CoC).

The researcher went further, to strengthen ADR to complement the formal justice system, helped developing appropriate pillars of ADR infrastructure, like (1) ADR Training Provider, e.g., Bangladesh Institute of Legal Advancements, the pioneering ADR training institute, (2) ADR Service Providers, e.g., JURISCONSULTS – A Legal, Mediation & Arbitration Centre, (3) Professional body for ADR Practitioners, e.g., Bangladesh Mediators Association and (4) ADR Council is left for the government to form; and taken into consideration under ‘Public-Private Partnership’ (PPP) scheme with the object of installing them to found an effective ADR System in Bangladesh. Effectively, the researcher helped starting a nation-wide ‘journey of mediation’ from promise to practice and keeps on training to lawyers, judges and sector leaders and helps open up ‘mediation cells’ in various district bars. His vision is to “Let the ‘Court of Conscience’ feat the ‘Alternative Dispute Resolution’ based on philosophy of ‘Justice for All”.

The Bangladesh Model of Mediation Mechanism: The Bangladesh Model of Mediation Mechanism, designed and developed by the researcher, ideally initiated to further institutionalizing the bar-sponsored and court mediation and introducing private mediation to resolve Civil, Commercial and Criminal disputes other than the ones grievous in nature in all possible sectors; giving special attention to existing legal and judicial system, social structure, judicial corruption, acute influence of the political parties over the society, economic constraints, limited access to justice, lack of awareness, weak rule of law and ADR jurisprudence etc.; with ultimate objects to establishing Mediation in mainstream as a consensual justice system; using social conscious, trust and moral obligation with voluntary participation of the parties concerned to settle their own disputes or conflicts to restore social harmony and peace within the parties and the society at large. The Bangladesh Model of Mediation Mechanism will, in fact, take us back to basics of which we could be proud of our traditions and ancient practice of panchayat, samaya and mediation, as complementary to Judicial Justice System.

Dr Belal Husain Joy, Barrister-at-Law, an Advocate, Supreme Court of Bangladesh & Adjunct Professor of Law; Chairperson, Bangladesh Institute of Legal Advancements and Member, Scientific Committee, International Conference of Mediation for Justice. He has developed the perspectives (1) ‘Consensual Justice System in Bangladesh’ with appropriate Models to establish ‘Court of Conscience’, to practice ‘Mediation’ as a Mechanism of ADR; (2) combined two inter-dependent social disciplines –‘Law’ and ‘Management’ to increase productivity of the lawyers through his book entitled as LAW MANAGEMENT SKILLS; and (3) gave a methodical shape to the CONSTITUTIONAL HISTORY OF BANGLADESH. [contact: drbhjoy@yahoo.co.uk]