Tuesday, November 20, 2018 | ePaper

Adjudication process at the grassroots

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Dr. M Abul Kashem Mozumder and  Dr. Md. Shairul Mashreque :
A number of studies have appeared  on the topic like gram adalat((Masahreque 1995, 2002, Mashreque and Amin  1995, and Sultan  1978, Karim and Rahman 2008, Preeti Sikdar 2016  Ven  Beurden and Arens 1977). We may have much  to have an objtctivre understanding about the  adjudication process  at the micro level. Gram adalat  was a functional entity  in traditional villages that are not exposed to the process of modernization . It was a miniature reflection judicial admunstration or administration of justice . There used to be  salish as a dispute settling machinery at the informal level trying to resolve any conflict that might appear as  interpersonal hostility.
Traditional mechanism of control is reinforced through salish . Dispute of any kind  is usually referred  to salish for amicable settlement. On the  day of meeting the leaders  hear both charges and defenses. . The parties-to- a dispute have to be present  in the rural court.  This informal. Nevertheless formal court operate at the union level.   As has been observed by Sikdar 2016):
In Bangladesh, the court system is mostly urban-centric. Therefore, delivery of justice in rural disputes has been rare for a long time. However, to address the serious need of protecting the majority of rural population through law, a separate court system had been introduced in 2006. The legislation introducing such a unique system was titled the Village Court Act, 2006. It established courts for rural areas, sitting in the local government institutions named 'unions', working independently from both the Ministry of Law and Parliamentary Affairs and the national judiciary.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. Hence it is safe to deduce that village court carries out duties related to the executive of Bangladesh being regulated through a specific local government body. This court can take cognizance of certain specific civil and criminal cases as determined under the schedule of the Village Court Act, 2006. Main functions of village courts of Bangladesh therefore include: filing of a case, summoning, witness examining, oath-taking under Oaths Act, 1873, giving written judgment and imposing fine up to 75 thousand taka as penalty.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.When we picture a judge sitting in his court, we cannot but consider such a person to be dedicated toward ensuring true justice. Because the post of a judge is the most impartial position ever created. Can an executive officer with a political agenda ever be a nearly suitable option for carrying out such tasks of a judge? The answer would obviously be negative.The Constitution of the Peoples' Republic of Bangladesh clearly provides that every accused person shall have the right to a speedy and public trial by an independent and impartial Court (article 35). Moreover, executive organs of the State must be separate from the judiciary in order to ensure such independence and impartiality (article 22).
These provisions are being violated seriously by the existing law relating to village courts. Not only are the judicial acts deciding fate of millions are being carried out by executive post holders, but also their political identity is now going to get utmost preference under the latest addition of section 19A in Local Government (Union Parishad) Act, 2009. In the current era, when political rivalries threaten peace so often and corruption among politicians run rampant, we can hardly expect these political representatives to be impartial in delivering court judgment. Such situation is also opposed to the promise of removing the disparity between the urban and rural areas (article 16) in the Constitution. Unlike the courts situated in urban areas, which are equipped with judges trained in the skill of delivering judgment, villagers of Bangladesh are bound to accept decisions delivered by elected executive officers of Union Parishads.
The newly surfaced dilemma due to the change brought in Union Parishad election system definitely appears to be opposing the spirit of our Constitution. The possible consequences of allowing politically elected leaders to lead a court room cannot be expected to uphold the sanctity of rule of law or ensure independence of judiciary.
It  does seem that  Union parishad has to render judicial services through gram adalat(rural court). Gram adalat is a rural-local court consisting of five members, such as UP chaiman, two members on behalf of plaintiff and two members on behalf of complaint. It is empowered to settle civil and criminal cases mentioned in the village court ordinance, 1976(Karim and Rahman 2008).
The rural court informally constituted  tries  to hold out the image of neutrality. If anything going wrong as in the cases of manipulation by the powerful and influential there is an opportunity to  take recourse to union court.  Some studies showed that especially land conflict among the interacting families received a temporary solution. On many occasions disagreement over the terms and conditions of settlement led to cases  at the union court.
The union court members set up several examples of  addressing the cases within due process of law. Recently a project has been under implementation to activate the union court. This is expected of producing results. Extensive case backlogs in the lower (formal) courts and complex, long and cumbersome procedural requirements is excluding large proportions of the population of Bangladesh, particularly the citizens living in poverty and makes them vulnerable to access to justice. To address these issues the Government of Bangladesh passed Village Courts Act 2006 which amended in 2013. For some , the Act was not functional and the local citizenry had limited enticements and/ or confidence in taking disputes to the village courts.To come over these, the Local Government Division (LGD) under the Ministry of Local Government, Rural Development and Cooperatives (MoLGRD&C) implemented a pilot project Activating Village Courts in Bangladesh (AVCB) Project (2009-2015) in 351 unions of Bangladesh with financial and technical supports of EU and UNDP. The aim of the project was to improve access to justice by establishing village courts in 351 unions of Bangladesh. In this regard, the piloted project provided supports for building the capacity of service providers, creating demand of village courts through its awareness raising initiatives, policy reform actions and strengthening institutional monitoring system(Project documents)
This project is thus to ensure governance at the union level. The prospect  is stimulating breaking new grounds.

(Dr. M Abul Kashem Mozumder, Pro-VC, BUP and  Dr. Md. Shairul Mashreque, Retired Professor, Chittagong University)

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