It was a small feud between the uncle and his nephew in Bangladesh about a bamboo bush.
The nephew wanted to cut and sell bamboo from the bush but the uncle didn’t let him do so. One thing led to another and they had a squabble. Some insinuating neighbors weighed in and because of their persuasion, the nephew filed a case in the civil court.
Later on, when the nephew saw his uncle in the dock, he was filled with remorse. He didn’t want his uncle to go through that tedious process. The judge was sympathetic. He invited the uncle and nephew to his chamber and asked the nephew whether he wanted to withdraw the case.
The nephew did that and they both went home happily.
The judge in that case was Bangladesh’s former secretary of Law, ASM Zahrul Haque, and he told this correspondent about the incident recently.
The pile of unsolved cases
Haque said that most of the civil or criminal cases filed in the country’s district courts are similar to the case he had mentioned. “In my experience as judge, I found that a little arbitration among the plaintiff and defendant could solve the case easily,” he said. “But getting them together or giving them the opportunity is the main difficulty.”
He added: “As because we have such a huge number of cases piled in the court waiting to be disposed of, but since our judiciary severally lack appropriate number of judges, the cases remained stuck.”
As of now, a huge backlog of around 3.6 million cases is pending with the courts across Bangladesh. This includes cases in the Appellate Division and High Court Division of the Supreme Court.
Disposing those cases is a hard job for the judiciary with only seven judges for the Appellate Division, 91 judges for the High Court Division and around 1,600 judges for the lower courts across the country.
“It could have been avoided if restorative justice process is being implemented in the country,” Haque said.
What is restorative justice?
Restorative justice refers to a process where victim and offender come together in a safe and controlled environment to share their feelings and opinions truthfully and resolve how best to deal with the aftermath.
Use of the concept of restorative justice in various forms has been heard of more frequently of late, but practices are old as human civilisation. It has sprung from sites of activism, academia and the greater domain of criminal justice system. Restorative justice is a spontaneous and natural approach to justice focusing on needs of victims and offenders, including the involvement of community, instead of satisfying abstract legal principles or theories for punishing offenders.
By and large, restorative process follows a theory of justice that considers crime or wrong doing is an offence against individual or community rather than the state. It fosters dialogue between victim and offender that emphasises highest victim satisfaction and offenders accountability.
One form of restorative justice are the village court that have long existed in Bangladesh. The country has a long history of informal dispute-resolution mechanisms – the traditional shalish, NGO-reformed shalish and the village court are prime among them.
The first proposal for establishing village-level courts on a legal basis was made by the Fraser Commission Report, 1902-’03. Later on, the Hobhouse Commission of 1907-’09 and Levinge Committee of 1913 proposed the creation of village-level courts to handle minor cases.
This resulted in the passage of the Bengal Village Self-Government Act, 1919 (Bengal Act V of 1919). This was the first law to empower a local government body to adjudicate criminal cases. The Act established a “union bench”, corresponding to the present-day village court, with concurrent jurisdiction with formal criminal courts to try petty criminal cases.
Later on, in 1961, the Conciliation Courts Ordinance was promulgated, which empowered the “union council” (local government) to deal with minor cognisable offences This Ordinance was repealed by the promulgation of the Village Courts Ordinance, 1976.
This Act and the Village Courts Rules of 1976 regulate the formation, jurisdiction and functioning of the village courts, which are an ad hoc forum for adjudicating minor disputes or conflicts in rural areas. In case of any dispute triable under this Ordinance, any of the disputant parties can apply to the chairman of the Union Parishad for remedy through formation of a village court.
Promoting restorative justice
Since 2008, the Bangladesh home ministry, the German agency GIZ and Britain’s Department for International Development have been jointly implementing a project titledImprovement of the Real Situation of Overcrowding in Prisons in Bangladesh. In this regard, GIZ Bangladesh has initiated restorative justice at community-level arbitrations so that local problems can be solved using local and community solutions.
It also has decided to introduce restorative justice in specific cases like those concerning minor physical assaults, theft, dowry, damage to crops and wealth, fraudulence, financial dispute and gambling.
Promita Sengupta, head of GIZ’s restorative justice project in Bangladesh said that the criminal justice system of Bangladesh focuses more on punishing the offenders while the restorative justice mechanism focuses on repairing the harm of the victims and accepting the offender as a reformed member of the community.
Lack of financial resources and outdated legislation pose serious challenges for the judicial system in Bangladesh. Insufficient cooperation on the part of the criminal justice bodies is leading to an enormous backlog of cases.
“In extreme situations, it can take up to 15 years for a legal case to be processed,” she said. “The penal system includes imprisonment as punishment but does not generally provide any strategies for rehabilitation or reintegration.”
Almost 70% of prisoners are held in pre-trial detention, regardless of the severity of the offence of which they are accused, or merely on the grounds of vague suspicions. In some cases, women and girls are held in safe custody. Victims, not perpetrators, are detained, so as to ‘protect’ them from suffering further attacks, said Sengupta.
She also said that the country’s prisons are severely overcrowded. “Even the central Prison Directorate explicitly states that it is unable to adhere to the minimum standards for prisons as required by the United Nations – namely the provision of sufficient light, ventilation, space and privacy.”
Under the circumstances, restorative justice could be an effective method for dispute resolution to reduce the backlog and future case load. “Looking at the huge amount of pending cases in court, it is necessary to think of new approaches,” she said. “Restorative Justice, where possible and applicable, might be one option to restore peace and justice in due course -and not only after years.”
She added: “It also gives offenders and victims alike the possibility to actively take part in the restoration process.”
Faisal Mahmud is a Dhaka-based journalist