By Jerome Sayre
Oct 5 2016 (The Daily Star, Bangladesh)
It is a sad but inescapable truth that millions of Bangladeshis have limited access to a functioning, fair and transparent justice system.
Despite recent improvement, the country’s courts remain overburdened with huge numbers of long pending cases. Petty corruption and expense deter many people from attempting to resolve their cases through the formal legal system, while deeply-ingrained prejudices prevent access to justice for many women, poor people and those from minority ethnic or religious backgrounds.
Millions of Bangladeshis each year continue to pursue justice using traditional methods of mediation and dispute resolution. The most common of these is shalish, the system by which arguments are discussed and resolved by community members. While many shalish yield fair and just results accepted by all, many others result in illegal and abusive settlements distorted by class, gender and religious bias.
Despite this, low cost and local shalish continue to be the first option considered by most Bangladeshis. Our project found that 92 percent of the public are aware of shalish while only 7 percent are aware of government legal aid (2013 CLS Programme survey). This is consistent with other research showing that Bangladeshis overwhelmingly resolve disputes out of court.
To expand justice for average Bangladeshis, the worst abuses of traditional shalish must be reformed while retaining its low cost, local nature and ability to restore community ties.
We work with an NGO in Chittagong that recently helped a young woman who was trapped in a violent marriage. She suffered serious injuries after being beaten by her husband and his family, and was eventually taken to the NGO to seek help.
Once she had recovered in a safe environment, workers from the NGO arranged for a local mediation session between the couple. The woman’s husband acknowledged that he had treated her badly and dropped his demands for a dowry payment from her family. Using training in the law and modern mediation practices, the NGO had developed the capacity of local mediators to provide quick, fair and equitable solutions to disputes.
The young woman agreed to return to their marital home and they are living together again peacefully and recently had a baby son.
This is an example of a case that was resolved satisfactorily through the reformed local or traditional system and there are many more like this. However, some disputes cannot and should not be handled through shalish. These must have a clear path upward to ensure their resolution in a court of law.
I recently encountered a case in which a young woman had been raped by men close to her home and became pregnant. Her family was poor and lacked the resources to pay for proper legal representation or even for the young victim’s medical care. The case was taken up locally and the alleged attackers were ordered to pay a substantial fine. They refused and began harassing the victim and her family.
The case only progressed with the involvement of one of our NGO partners, the Bangladesh Legal Aid and Services Trust (BLAST). Thanks to help from BLAST, the young woman was taken to a clinic and given an ultrasound examination before being put on a programme of antenatal care. Her case was taken up by a BLAST-appointed lawyer, who has filed charges against the three alleged attackers. Two of them have already appeared in court.
Bangladesh law clearly sets out offences which cannot be mediated and rape is one of these. The only chance for families like this one to receive proper justice is for them to be able to access the formal legal system, which is why the work of NGOs is so important. With the right training and support, the many NGOs across Bangladesh can work to reform traditional shalish and also act as a bridge to refer serious offences to government services and the courts.
The Government of Bangladesh has recognised the important role of NGOs in increasing access to justice. In the last year, I have spoken with several members of the judiciary who guide government-funded Legal Aid Committees in each district (DLACs). A growing number of these District Judges and their committees are actively engaging with NGO representatives to promote the government’s free legal aid at the grassroots level and to improve the services of DLAC lawyers representing poor and marginalised clients.
In 2015, the Honourable Minister of Law, Justice and Parliamentary Affairs set an ambitious goal of 90 percent of disputes in Bangladesh to be resolved out of court, noting a backlog of more than three million cases in the formal court system. (Government efforts since have reduced this figure, but it remains too high.) At the same time, he emphasised that informal justice proceedings at the community level must be consistent with the laws of the land, sensitive to women and free of bias against the poor.
Judicial systems in developed democracies are also increasingly promoting out of court settlements of disputes. There is a growing recognition of the rising costs of litigation and the advantages of alternative dispute resolution (ADR) which saves time and money and can restore relationships between perpetrators, victims and the wider community.
Bangladesh is actually ahead of this trend with a long history of traditional mediation to build on, reform and link to the formal court system. What is emerging is an access to justice approach which builds on Bangladesh’s unique combination of actors and abilities to unify the range of options available to people seeking redress for grievances. It combines the community strengths of local development NGOs, the technical expertise of national legal service organisations like BLAST and the government’s commitment to extending legal aid and access to Bangladesh’s formal court system.
The result will be improved lives and changes in the systems and social norms that disempower the poor, marginalised and vulnerable.
The young women in the stories I recounted, and many millions more like them deserve our help, commitment and collective effort to make this a reality.
The writer is Team Leader, Community Legal Services.
This story was originally published by The Daily Star, Bangladesh