Rural dispute resolution in Bangladesh: How well are village courts working?

  • Mohammad Tarikul Islam
Posted:
19 October, 2018

Bangladesh offers an interesting case in which informal rural dispute resolution has been institutionalised as an alternative route to justice:  the 2006 Village Courts Act sought to combine features of traditional tribunals – Shalish – with the more formal judicial approach offered by the adversarial system inherited from colonialism.

But how successful have the village courts been? Fieldwork I carried out in two Bangladeshi villages to survey popular perceptions of the new village courts suggest they have their own flaws and require further reform.

Informal dispute resolution vs formal justice

Historically, the rural poor and other marginalised people in Bangladesh have been caught between two judicial systems, neither of which has been able to meet their needs.

While the ancestral informal dispute resolution mechanism - Shalish - offers rural people easy access to justice regardless of wealth, gender, caste, and religion, it is also known for unfair decisions based on local power structures and backward norms, as well as draconian enforcement practices.

In contrast, the adversarial judicial system which Bangladesh inherited from colonialism is highly formalised and places great emphasis on due process. However, the system is incapable of meeting the needs of society, especially in the countryside: fees are unaffordable, delays enormous, procedures impenetrable, corruption rampant, and judges biased against the poor and other marginalised people.

To bridge the gap between informal and formal dispute resolution, Bangladesh redesigned Shalish through the 2006 Village Courts Act. The village courts aimed to combine the best of Shalish on the one hand (accessibility and effectiveness), and of the formal judicial system on the other (procedural justice).

The 2006 act provided for the establishment of a village court in every Union Parishad (UP). Each village court is comprised of a panel of five: the UP Chair; two other UP members, one of whom is chosen by each party in the dispute; and two additional citizens, who are also chosen by the parties respectively. To enable access for the most vulnerable groups, fees and other associated costs for submitting a case are very low (ca. 240 Taka, or £2).

Popular perceptions about village courts

To undertand popular perceptions of village courts, I conducted fieldwork in two villages: Kaichan, in the remote Mymensingh District, and Kushuria, on the outskirts of Dhaka, Bangladesh’s capital city. In each village, I conducted a focus group with 12 participants. Participants represented different groups in terms of religion (Muslim or Hindu), caste, gender, and profession. I also conducted expert interviews with UP Chairs, government officials, academics, and a foreign donor representative based in Bangladesh.

In the course of the focus groups and interviews, a number of issues were raised: people felt that the UP Chair would always rule in favor of a relative, regardless of guilt or innocence, and that political affiliation played a major role. They also suggested that those who could give a lot of money to the Chair found the verdict would come out in their favour. They suggested that when complainants were weak and submissive, nobody would speak up for them. On the other hand, they said nobody would participate if there was a complaint against an influential person. If the victim was an opponent of the UP Chair or other UP members, he or she would not get justice.

There was a general view that in the presence of powerful influential people, victims did not dare to speak the truth; that village courts could not achieve anything because they were biased due to administrative connections, undue influence of ruling political parties, muscle power, and corruption. People found that, even when a formal court had pronounced its ruling, it was still difficult to get it implemented. For example, the police might demand a bribe from the plaintiff before arresting the accused.

Thus, despite the reform, it remains debatable to what extent village courts actually work for those who need them most. The rural poor are socially excluded and suffer from discrimination, deterring them from accessing even informal village courts. Even when they have the courage to do so, they may not get a fair hearing as procedural justice is undermined by local power imbalances and widespread practices of nepotism and corruption.

Policy recommendations

One way to improve the chances for litigants to gain justice from village courts would be to help litigants find affordable and easily approachable solicitors with a good understanding of rural affairs. Another is to make access easier, for example by helping illiterate people to file cases.  A third is to provide training to the UP Chair and other people involved with village courts, sensitising them to the needs and aspirations of poor and marginal people. In any case, it is necessary to make sure that nobody can use power to determine or influence a verdict.

Women face particular difficulties in getting their voices heard, not least in a village court setting. A women-friendly environment in the court premises is therefore very important. UP representatives and panel members need adequate sensitisation with gender-friendly behaviour. Whenever a woman’s interest is at stake, at least one woman should be on the panel.  According to the experts who were interviewed, village court must be in succession in a meaningful way to defend social peace and stability.

To ensure fairness, policy makers should limit the authority of the UP Chair; set clear rules for who should chair village courts when the UP Chair is seen as partial; and make it a requirement that all sessions must be publicly announced. Other desiderata include a streamlining of the process for enforcing decisions, a system for proactive judicial supervision of the courts to comply with fundamental rights, and with village court procedure.

While administrative assistance is essential for the smooth running of village courts, Union Parishads are heavily overburdened. At present, the only functionary available is the UP Secretary. Given the increasing workload resulting from the decentralization process, the UP Secretary has insufficient capacity to serve village courts. Therefore, the relevant laws should be amended to create a post of Assistant UP Secretary. The Assistant Secretary would provide valuable assistance to the UP Secretary. He or she would also be the first port of call for all matters relating to village courts.

This post is based on Mohammad Tarikul Islam (2018) ‘Rural Dispute Resolution in Bangladesh: Popular Perceptions about Village Courts’, ODID Working Paper No 210. The paper was written while the author was a visiting fellow at ODID and is forthcoming in Contemporary South Asia.

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About the author(s)
Mohammad Tarikul Islam