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Open Discussion

by Delwar Jahid//

Introduction :Generally the word shalish means mediation in Bangladesh society (Huq: 1998). The concept of shalish refers to a method of dispute resolution, and is considered to be a customary practice of resolving differences among community members.
In order to resolve disputes between the contending parties, an impartial third party mediates shalish. The concept has significant civil and legal importance as it helps to restore community harmony formally and informally. Since shalish vivifies the dynamics of rural power structure of Bangladesh, it has enormous theoretical implications. First, it stabilizes socio-political livelihood and class-conflict in small community context. When social conflicts, disintegration, violence and terrorism, and chaos erupt in community; shalish appears to supplement and substitute immediate legal needs of the community. Second, shalish is a strong means to establish community solidarity, social bondage and reciprocal coexistence.

As well, shalish is a traditional democratic mode of conflict resolution. The ‘Banglapedia’ defines shalish as a social system for informal adjudication of petty disputes both civil and criminal, by local notables, such as matbars (leaders) or shalishkars (adjudicators). Two types of adjudication have been in place in rural Bangladesh from days of antiquity, these were shalish and extension of the state’s judicial arm into the rural areas through specific legislation.

Normally, the process of a particular shalish starts with interrogating the disputants to ascertain the facts. Then the shalishkars offer their solutions, and seek the opinions of disputants before; finally, they come to a decision.

Although this procedure is found to be uniform throughout the country, there are local variations depending on local customs and tradition. Shalish is supposed to lead to conciliation between the contesting parties. But, in the context of Bangladesh’s rural social structure, shalish seems to have more often than not been used as an appendage of the existing rural power structure, sometimes, of religious bigotry (Huq: 1998).

Shalish is meant to be a medium for out-of-court settlement of petty quarrels or disputes in the rural society. This conventional system of mediation is deeply rooted within the history, culture and humanities of Bangladesh.

Shalish organizations in Bangladesh and elsewhere in the subcontinent are usually practiced through the Gram (Village) Panchayets—the lowest tier of local government. The Panchayet-led shalish has been a popular medium of dispute resolution in the rural areas of Bangladesh over centuries. The Gram Panchayet functions to resolve or to mediate disputes between the villagers of different religions, castes and occupations. To some extent, the Panchayet exercises power as like as a judicature.

During the ancient period, the panchayet was usually nominated by the king or elected by the people of respective villages. The esteemed members of the Village Panchayet were responsible for the distribution of land among the villagers and tax collection.

As Gram Panchayet is considered to be a community-based initiative of dispute mitigation, there are no written rules or standards for conduction of shalish. Therefore, mode of shalish management differs from one region to another and one religion to the other. Usually the legal notion of shalish differs from its popular notion. Mukerjee, (1970) describes—

It is not fixed set of written rules or it solely an instrument of power. Law is living, social, institution for ‘authoritative decision-making’. These decisions regulate the reciprocal interests of individuals, institutions, and the State, and coordinate their efforts towards a common goal…there has long been a notion in the mind of common man that law exists in the form of ‘rules’ in the statute book. This conception of law is, however, not adequate; because, knowledge of these rules cannot ensure a knowledge of the law, which must take into account the judicial pronouncements upon them.

The relationship between law and shalish has remained yet a disintegrated phenomenon in Bangladesh local administration system. Shalish sometime recreates confusion and controversy that lead to conflict and contradictions with the domestic law. The United States State Department Report 2002 writes,

In January 2001, the High Court ruled illegal all fatwas, or expert opinions on Islamic law. Fatwas can include the decision as to when a holiday is to begin based upon the sighting of the moon, or an opinion on a religious issue. Fatwas also commonly deal with marriage and divorce, or mete out punishments for perceived moral transgressions. Islam dictates that only those Muftis (religious scholars) who have expertise in Islamic law are authorized to declare a fatwa.

However, in practice village religious leaders sometimes make declarations in individual cases, calling the declaration a fatwa. Sometimes this results in extrajudicial punishments, often against women for their perceived moral transgressions. While the court’s intention was to end the extrajudicial enforcement of fatwas or other declarations by religious leaders, the ruling declared all fatwas illegal, and resulted in violent public protests (see Section III). Several weeks later, the Appellate Court stayed the High Court’s ruling.

To ensure the welfare of the state, it is necessary to ensure the contribution of law in regulating reciprocal interests of individuals, groups and the state and in coordinating common efforts for the realization of common goals, i.e., peace, justice and development.

1.2 The Problem Area and Importance of Shalish

Bangladesh inherited a colonial legal system from the British in 1835. Early colonial government introduced the English Law and Polity in India (which included present-day Bangladesh). The East India Company introduced the civil military systems in the Indian subcontinent. This imposition had resulted to the conversion of simple indigenous law of India into the complex legislative and justice systems of the British colonial authority. After the end of the British colonial rule in 1947, Bangladesh went under the ruling of Pakistan. However, the legal system had minimal changes during 1947-1971—until the independence of Bangladesh from Pakistan.

The adversarial justice system in Bangladesh, which was inherited from the British and the succeeding Pakistani legal system, did not bring significant changes to community level law and order situation in Bangladesh society. As well, adversarial system is often blamed for not incorporating the religious, cultural and historical elements of colonized nations. Given the Muslim-majority social structure of Bangladesh, influence of Islamic religious codes in public policy competes with secular and pluralist approaches to governance.

The constitution of Bangladesh guarantees equal rights to all citizens irrespective of race, religion, sex, and or other considerations. The “directive principles of state policy” as stated in the constitution oblige the government to provide equal opportunity and protection of law, and a minimum standard of living to all citizens. The right to life also includes safety and security of the citizens of the country.

In reality, newspapers of Bangladesh, galore stories of murder, rape, fatwa, family violence, and students and political clashes. These incidences indicate exploitation by factory owners, landlords, businessman and the state’s own officials. Women, as well as indigenous people and other minorities, regularly face discrimination.

The British Broadcasting Corporation (BBC) reports on the need to reformation of the justice system in Bangladesh. The United Nations has issued a detailed report that strongly urges the Bangladeshi government to reform the country's criminal justice system. The 120-page report expresses concern about the deteriorating law and order situation in the country. It says that, in Bangladesh, today many laws and practices of the criminal justice system discriminate against over 75% of the population.

Alam (2000) writes, Our judicial and legal system has a rich tradition of common law culture and it can boast of a long record of good delivery of justice. Like any other legal system, common law with its adversarial or accusatorial features, has booth its merits and demerits. But in recent years, certain objective and subjective factors have led our judiciary to a situation where its demerits are ruling over the merits, manifesting in crippling backlogs and delays. Delayed justice fails to pay even the winning party of the litigation, for its costs in terms of time, money and human emotions.

The legal and judicial capacity building project of the World Bank for Bangladesh has stressed a need to improve the environment for doing business by increasing the efficiency, effectiveness, and accountability of the civil justice system, and increasing access to justice, particularly for women and the poor.

The Bangladesh legal system has been facing enormous struggle in establishing a solid foundation for shalish as a social order which would be helpful to the vast majority of rural people. It would eradicate exploitation and secure equal opportunities for justice. Sinha (1983) writes, “Social change, whether it comes, through legislation or through another process, indicates the change in existing pattern of social life. It is axiomatic that social change in any society is a necessity, because social conditions do not remain static.”

1.3 Reality of Present Form of Shalsih

The pre-colonial India gradually moved from simple indigenous justice system to the British law, legislation and justice during the colonial periods (1757-1947). Afterwards, the complex British law has become a social problem in India, Pakistan and in Bangladesh after 1947—the freedom of the subcontinent from the British colonial rule. The legal paradoxes appeared as blending of the Western (primarily British) legal systems with the indigenous legal system. The British legal legacies constituted constant vestiges of colonialism, and the Muslim fatwas and Hindu religious verdicts replaced Western secular legal system per se. Asian Development Bank (2003) describes,

As in many countries in the world, legal procedure in Bangladesh is slow and expensive. For most people, the legal system is out of their reach. To avoid costly and lengthy court, people seek local remedies such as the traditional alternative dispute resolution mechanism, popularly known as shalish. Issues such as marital dispute, desertion, oral divorce, maintenance, land and criminal offenses such as rape, adultery, dowry related violence, are commonly dealt with in shalish sessions in Bangladesh.

These sessions tend to be conducted by local government representatives, particularly the Union Chairperson and social leaders such as religious leaders and teachers. For judgment, many of these sessions rely on customary practices and Islamic Shariah laws, often issuing verdicts that not only discriminate against women but also contradict existing legal rights.

Presently, shalish in Bangladesh is entangled in a vicious circle of complications. Huq (1998) referred to studies on Union Parishad-led rural informal shalish as a means of widespread corruption of its administrators. There is a tendency to deny or to pay improper attention to the institutional laws, and approved justice principles in informal shalish incidences. Orthodox religious views, money, nepotism, political domination and social status of upper-class people often influence the verdict of most shalish operations. There are evidences that some of the shalishes were appropriated as instruments for implementing perverse ‘fatwas’ (religious verdict) against women in some parts of the country. Tania Amir (2002) writes,

In fact it was a silent revolution changing the social landscape of rural Bangladesh. It was not unusual to see a rural woman in by-cycle to go to work. This would have been unthinkable in by gone times. Thus the clergy and the Mahajan class fought back with systematic violence against women by way of fatwa and attack on NGO, NGO workers etc. Almost always persecution and fatwas have been given against women, subjecting them to inhuman, cruel, and degrading treatment in the name of a Islam by way of a ‘Shalish’ (village mediation). However, these are not true mediations at all, rather imposition by the clergy pre-historic punishment, contrary to the existing law, in the name of Islam. An exercise has been done by compilation of fatwas reported in newspapers and it is interesting to note that over 98% of fatwas are directed against women, or against developmental activities whether by the State or NGOs engaged in the process of empowerment of women and poverty alleviation.

The fatwabaj are therefore not only ‘anti-women’ but also ‘anti-development’. Even the first lady Judge of the Supreme Court has not been spared from such fatwas, due to her Judgment which gave protection to a victim of fatwa who was a pregnant woman and directed the police to take appropriate steps against the concern ‘fatwabaz’ .Thus the fatwas has been used as a systematic tool of violence and repression against women.

Women in Bangladesh are victims of fatwa, and crimes against women are increasing. Saira (2001) writes,

Women in Bangladesh have had to face violations of their human rights year after year. These acts of violence are both public and domestic - rape, acid throwing, fatwa1, violence due to non-payment of dowry, etc. Social reasons and legal loopholes are sources of violence against women in Bangladesh. The so-called religious and cultural norms, discriminatory and defective laws, denial of appropriate property rights of women, non-implementation of international instruments relating to women's rights, and other related factors have created a negative environment for women. These factors consequently rendered the women vulnerable to various forms of violence and exploitation.

It is also evident that frequent changes are taking place in the rural power structure. These changes influence all spheres of rural life, and consequently subdue the traditional acceptability of the Gram Panchayet system. The Gram Panchayet of Bangladesh currently represents a very inefficient and incapable body of local level conflict resolution dynamic. In some instances, the Gram panchayet creates controversy and clashes in the rural society. Huq (1998) writes,

The initial development of the panchayets was a spontaneous phenomenon to meet the social needs, and they were quite independent in their working. Though the kings, or the rulers named otherwise, are reported to have some role in helping these panchayets to get organized at the formative stage, the former seldom interfered with their working. The panchayet had jurisdiction over almost every type of dispute arising in the village community. They decided both civil and criminal cases and their powers were not ordinarily bond within any financial limit.

The Muslim rulers later constituted their own system of judicature, which was at variance with the traditional system, but the exiting village panchayet was virtually kept untouched. However, the jurisdiction and authority of panchyets suffered decline with the establishment of formal courts for adjudicating civil and criminal cases during the period of British rule in India. The new land system introduced by the British also adversely affected the panchayet justice system. Yet, during the entire British period, the panchayet justice arrangement was never specifically singled out for abrogation and rather, its usefulness was recognized unofficially.

The Conflict Management Group for USAID’s Center for Democracy and Governance conducted a study on the Alternative Dispute Resolution (ADR) in Bangladesh. The group noted that ADR refers to a range of methods and techniques for resolving dispute, including unassisted negotiation, non-binding third-party intervention (conciliation and mediation), and binding arbitration.

The Conflict Management Group reviewed and analyzed ADR experience in developing countries and developed guidelines for determining whether to initiate, or how to design, ADR programs.

The study showed, in Bangladesh, a broad NGO-led community mediation program, supported by the USAID and the Asia Foundation, mediates over 5,000 disputes a year. The program is based on a revised model of traditional shalish community-based mediation, which employs mediators selected and trained by NGOs. The program was developed independently from the court system and with a minimal government role. With high satisfaction and settlement rates, the project is viewed a success. In addition, it appears to provide greater access to justice for women than either the formal court system or unassisted shalish mediation.

1.4 Historical Context

From the 13th to the 18th century A.D. the Buddhists, Hindus and later Muslims ruled India. The history of development of political philosophy and legal thoughts is influenced and often represented and characterized by the role of the dominant rulers in India. Conflict Management is, in fact, contemporaneous to our civilization. Mediation has always been an immense interest to Indian people. The need to resolution disputes has always been felt, wherever men and women formed themselves into an organized society. Nigam, (1965) writes,

In every organized society, however certain acts of commission or omission are forbidden on pain of punishment which may even extend to the forfeiture of life itself. It is recognized on all hands that apart from liability for reparation or compensation, which everyone who wrongs another must incur and pay the wronged individual, the state also impose certain penalties with the object of preserving peace and tranquility in the society and promoting good behaviour towards each other and towards the community as a whole.

The following brief synopsis of the history of Bangladesh from the United States Library of Congress helps to set background discussion of shalish, it writes,

Early history of Bengal, 1000 B.C-A.D 1202: “For most of its history, the area known as Bangladesh was a political backwater--an observer rather than a participant in the great political and military events of the Indian subcontinent. Historians believe that Bengal, the area comprising present-day Bangladesh and the Indian state of West Bengal, was settled in about 1000 B.C. by Dravidian-speaking peoples who were later known as the Bang. Their homeland bore various titles that reflected earlier tribal names, such as Vanga, Banga, Bangala, Bangal, and Bengal.

The first great indigenous empire to spread over most of present-day India, Pakistan, and Bangladesh was the Mauryan Empire (ca. 320-180 B.C.), whose most famous ruler was Asoka (ca. 273-232 B.C.). Although the empire was well administered and politically integrated, little is known of any reciprocal benefits between it and eastern Bengal. The western part of Bengal, however, achieved some importance during the Mauryan period because vessels sailed from its ports to Sri Lanka and Southeast Asia. During the time of the Mauryan Empire, Buddhism came to Bengal, and it was from there that Asoka's son, Mahinda, carried the message of the Enlightened One to Sri Lanka. After the decline of the Mauryan Empire the eastern portion of Bengal became the kingdom of Samatata; although politically independent, it was a tributary state of the Indian Gupta Empire (A.D. ca. 319-ca. 540). ..The third great empire was the Harsha Empire (A.D. 606-47), which drew Samatata into its loosely administered political structure.

The disunity following the demise of this short-lived empire allowed a Buddhist chief named Gopala to seize power as the first ruler of the Pala Dynasty (A.D. 750-1150). He and his successors provided Bengal with stable government, security, and prosperity while spreading Buddhism throughout the state and into neighboring territories. Trade and influence were extensive under Pala leadership, as emissaries were sent as far as Tibet and Sumatra…The Senas, orthodox and militant Hindus, replaced the Buddhist Palas as rulers of a united Bengal until the Turkish conquest in 1202. Opposed to the Brahmanic Hinduism of the Senas with its rigid caste system, vast numbers of Bengalis, especially those from the lower castes, would later convert to Islam.”

Hinduism replaced the Buddhists until the conquest; at the beginning of the Muslim rule converted Muslims started practicing Islamic customs in India. The United States Library of Congress describes as---

ISLAMIZATION OF BENGAL, 1202-1757: The Turkish conquest of the subcontinent was a long, drawn-out process covering several centuries. It began in Afghanistan with the military forays of Mahmud of Ghazni in 1001. By the early thirteenth century, Bengal fell to Turkish armies. The last major Hindu Sena ruler was expelled from his capital at Nadia in western Bengal in 1202, although lesser Sena rulers held sway for a short while after in eastern Bengal…Bengal was loosely associated with the Delhi Sultanate, established in 1206, and paid a tribute in war elephants in order to maintain autonomy.

In 1341 Bengal became independent from Delhi, and Dhaka was established as the seat of the governors of independent Bengal. Turks ruled Bengal for several decades before the conquest of Dhaka by forces of the Mughal emperor Akbar the Great (1556-1605) in 1576. Bengal remained a Mughal province until the beginning of the decline of the Mughal Empire in the eighteenth century…Under the Mughals, the political integration of Bengal with the rest of the subcontinent began, but Bengal was never truly subjugated. It was always too remote from the center of government in Delhi. Because lines of communications were poor, local governors found it easy to ignore imperial directives and maintain their independence. Although Bengal remained provincial, it was not isolated intellectually, and Bengali religious leaders from the fifteenth century onward have been influential throughout the subcontinent…The Mughals in their heyday had a profound and lasting effect on Bengal.

When Akbar ascended the throne at Delhi, a road connecting Bengal with Delhi was under construction and a postal service was being planned as a step toward drawing Bengal into the operations of the empire. Akbar implemented the present-day Bengali calendar, and his son, Jahangir (1605-27), introduced civil and military officials from outside Bengal who received rights to collect taxes on land. The development of the zamindar (tax collector and later landlord) class and its later interaction with the British would have immense economic and social implications for twentieth-century Bengal. Bengal was treated as the "breadbasket of India" and, as the richest province in the empire, was drained of its resources to maintain the Mughal army.

The Mughals, however, did not expend much energy protecting the countryside or the capital from Arakanese or Portuguese pirates; in one year as many as 40,000 Bengalis were seized by pirates to be sold as slaves, and still the central government did not intervene. Local resistance to imperial control forced the emperor to appoint powerful generals as provincial governors. Yet, despite the insecurity of the Mughal regime, Bengal prospered. Agriculture expanded, trade was encouraged, and Dhaka became one of the centers of the textile trade in South Asia…In 1704 the provincial capital of Bengal was moved from Dhaka to Murshidabad.

Although they continued to pay tribute to the Mughal court, the governors became practically independent rulers after the death in 1707 of Aurangzeb, the last great Mughal emperor. The governors were strong enough to fend off marauding Hindu Marathas from the Bombay area during the eighteenth century. When the Mughal governor Alivardi died in 1756, he left the rule of Bengal to his grandson Siraj ud Daulah, who would lose Bengal to the British the following year…
Shibnath Banerjee (in Banglapedia) writes,

The Muslim rulers introduced a system of administration, which was more or less centripetal in character. Even then the administration of the villages was left undisturbed so long as zaminders paid their royal dues regularly. The administration of justice and maintenance of law and order in the villages were in the hands of zaminders. The village council or panchayet, popularly known as caste council, enjoyed limited powers and authority in the sense that it could interpret only social laws and customs and suggest penalities only against the violator of these.

British sharply divided Hindus and Muslims to rule the sub-continent and used religious sentiment against each other. The United States Library of Congress found---
THE NATIONALIST MOVEMENT, 1857-1947: The recovery of the Muslim community from its low status after the 1857 mutiny was a gradual process that went on throughout the ensuing century. In education, commerce, and government service the Muslims lagged behind the Hindus, who more quickly adapted themselves to rapidly changing socioeconomic conditions. During British rule in India, most industry was Hindu-owned and Hinduoperated . Muslims lagged behind in business and in industry, especially those from eastern Bengal, which had long been regarded as remote from the hub of commerce. The words of Bengali commentator Mansur Ali succinctly describe the Hindu dominance and Muslim inferiority in virtually all spheres of society in the nineteenth and early twentieth centuries: "In Bengal, the landlord is Hindu, the peasant Muslim. The money lender is Hindu, the client is Muslim. The jailor is Hindu, the prisoner is Muslim.

The magistrate is Hindu, the accused is Muslim." By remaining aloof from the Western-oriented education system, the Muslims alienated themselves from the many new avenues opening up for the emerging middle class. This self-imposed isolation led to an intensified awareness of their minority role. Curiously, however, it was Muslim opposition to the extension of representative government--a political stance taken out of fear of Hindu dominance--that helped to reestablish rapport with the British, who by 1900 welcomed any available support against mounting Hindu nationalism.

1.5 Justice during the Muslim’s Rule

Husain’s (1934) study titled Administration of Justice during the Muslim Rule in India has three parts that describe the history of the Muslim rule in India by extent of emphasis. “Lowest (emphasis[1]) of all is the legendary period; next is the semi-historical; and last, we come to history, properly so called, where the mass of the materials is authentic and contemporary.” (Elephantone: History of India, Preface).

The Muslim rule was divided into four periods:

· The period of conquest and military occupation. -From Arab conquest of Sindh till the invasion of Sabuktagin (712-991 A.D.)

· The period of successive invasions without any attempt to establish a government in India. -From the death of Sabuktagin till the invasion by Mohammad Ghori (999-1206A.D.)

· The period of settled government with judicial tribunals. - From time of the Slave Dynasty till the death of Sher Shah (1206-1555 A.D.)

· The period of well-established government with extensive judicial and administrative machinery. - From the Mughal Rule till the grant of the Diwani (1556-1765 A.D.)

Husain (1934) briefly described the judicial system of the pre-Moghal period saying—

It is ordinarily believed by the common run of people that Muslim sovereigns governed India with the Laws of Shara’ (Canon Laws of Islam) imported ready-made from outside India.” (Sarkar: Mughal Administration, pp2-4) the exponents of the laws of Shara’ were misunderstood and misinterpreted, the Husian pointed out that “ They do not take notice of the fact that Mohammadan Law consists of two parts, religious and secular; that each portion has its special application”.

The general features of the Mughal Administration and Justice system was described by Husian as well-organised contributed to peace and order, highly centralized, an age of Renaissance of Art and Literature and finally the racial elements were more or less reconciled and contributed their skills and ability and wisdom to make the government a success.

The Mughal period was divided by the writer under the administrative and judicial system during the reign of Akbar; administration and justice under his successors; and existence of judicial machinery on the breakdown of the Mughal Empire. During the Mughal period the judicial machinery was renamed and reformed, similarly changes were made in administration. The village administration was run by the village community, by local zaminder, the jagirdar, the big farmer, and the headman who looked after the welfare and general affairs of the village. The judicial officers administered the justice system at the local level. But the village community had its own tribunal, viz., the village Panchayet to which the villagers ordinarily repaired for settling their disputes and differences.

Islam (2004) writes,

Darbar a Persian word, means a court and also the executive government. The Mughals, who held court with the amirs, mutsuddis, visitors, ambassadors, and seekers of justice and so on introduced darbar as an institution. It was a formal assembly in a designated place of royal palace. Constitutionally, the darbar had a descending order. The darbar-i-ala was the highest assemblage presided over by the emperor himself. The provincial subahdar held darbars attended by his ministers, mutsuddis, nobles and other leading citizens. In the darbar, the subahdar transacted certain state business pertaining to provincial concerns. Subahdar’s decrees including judicial pronouncements were made at the darbar. Besides, the subahdar also held social darbar attended by poet laureates, sages, pandits and entertainers who performed to the pleasures of the royalties and attendants.

The Mughal darbar was an institution, which provided a direct contact between the rulers and ruled. It was at the dabar that subahdar heard the Arjees (petitions), received dignitaries, conversed with the advisors and made state consultations with nobles and generalities. The colonial rulers had borrowed the splendour of the Mughal darbar without its consultative character….In short, darbar, which had originated from assembly of the Mughal kings, has in course of time diluted extensively to other areas of secular and spiritual powers transcending the bounds of the original Mughal executive authority.

Durrant (1935) write about the Moslem (Muslim[2]) Conquest “The Mohammedan Conquest of India is probably the bloodiest story in history. It is a tale, for its evident moral is that civilization is precarious thing, whose delicate complex of order and liberty, culture and peace may at any time be overthrown by barbarians invading from without or multiplying within”.

Faruqi notes,

Muslim rule in India lasted for almost 1000 years. How come then, asked the British historian Sir Henry Elliot, that Hindus 'had not left any account which could enable us to gauge the traumatic impact the Muslim conquest and rule had on them'? Since there was none, Elliot went on to produce his own eight-volume History of India from its own historians (1867). His history claimed Hindus were slain for disputing with 'Muhammedans', generally prohibited from worshipping and taking out religious processions, their idols were mutilated, their temples destroyed, they were forced into conversions and marriages, and were killed and massacred by drunk Muslim tyrants. Thus Sir Henry, and scores of other Empire scholars, went on to produce a synthetic Hindu versus Muslim history of India, and their lies became history.

1.6 British Legal System

As described by Lal (1995), a host of cultural assumptions and agendas accompanied British legal system:

Though British rule was founded on naked power, and India continued to be ruled by the sword, the British also achieved in India a conquest of knowledge. It was by means of this conquest that the British governed India and held it subject to their whims. There were numerous theories on how India might be governed: while some colonial rulers advocated a Platonic model of guardianship, and the evangelicals conceived it as Britain's preeminent mission to civilise and Christianise the heathen, the utilitarians sought mainly to introduce an efficient administration and encourage habits of scientific and rational thinking among the 'superstitious' people of the land. The so-called romantics fought for the preservation of Indian customs and institutions; in the belief that these were most appropriate for Indians at their stage of development, and that any attempt to tamper with indigenous customs and beliefs would be received with hostility.

Although the history and development of modern jural philosophy and thoughts on dispute resolution is not associated with a class of people, in many instances, tools and mechanism of states were used for the protection of the ruling class.

Rajeev, Dhavan (1989) described in Law and Society in Modern India “Administrators and judges of Raj had a direct interest in the legal system even if they represent varied interests and maintained varying standpoints. Those interested in the administration concerned themselves with institutional reform -careful attention being given to the development of judicial institutions to service the needs and responsibilities of ever-expanding Raj.

In Bangladesh and elsewhere in the subcontinent, Gram (Village) Panchayet was the lowest tier of local government. Gram Panchayet functioned to resolve or to mediate disputes in the village among the members of the different religions, casts and occupations. Panchayet exercised some powers similar to court. Huq (1998) writes,

…Hence a highly organized shalish system was unlikely to have operated here at any period of time. The local mediation during the early British period in this part of the subcontinent seems to have comprised adjudication of (i) petty disputes relating to social matters mostly through neighbourhood shalish; and (ii) land related and inter-neighbourhood or inter-village disputes through the ZAMINDER or his agents. Later, as population increased and neighbourhoods expanded from villages, there was both neighbourhood and village-based adjudication.

Also, with the strength of the zamindari system eroding over time and the growth of the formal courts, adjudication by zaminders or their officials in the rural areas gradually became defunct. In other words, shalish in Bengal villages seems unlikely to have been associated with a well-developed rural local government system. Whatever existed here was highly informal in nature, dictated by the practical situation prevailing at the grassroots level.

1.7 Impact of the British Rule in India

The History of the Modern World (2003) helps us understand that the establishment of an outpost in India in 1619 initiated British rule. Gradually control of India by the 1850s came through monopoly of overall British trades. English was made the official language and several traditional Hindu customs were outlawed in India. Due to a bloody Indian rebellion in 1857, political power was transferred from the East India Company directly to the British Crown and the company dissolved. The research in the History of Modern World (2004) found that:

Agriculturally and industrially, India prospered under British rule. A railway network was set up, and trade increased as well. Yet socially, India suffered great unrest. The Indians were disturbed by the treatment they received from the British, while the British attempted to shift the blame onto the Indian Muslim population, further fueling the fire of age-old hostility between the Hindus and Muslims. In 1885 the Indian National Congress was formed, a primarily Hindu body fighting for power back in Indian hands. Although the British mainly ignored it, it soon won popular support in the Indian population calling for Indians to take more pride in their history and products. The year 1906 brought the formation of the political All India Muslim League, which supported the Crown; soon after, with the 1909 India Councils Act, Muslims won the right for separate elections.

European attacks on Islamic countries however, began to undermine Muslim allegiance to the British Crown and talk of a new separate Muslim state increased. With the passing of the Rowlatt Acts, protests erupted across the country from Hindus and Muslims alike. Then, the British slaughter of 400 unarmed Indians and wounding of 1200 more at Amistar in 1919 shattered beyond repair any hope of British rule in India. The fact that British rule would withdraw from India became clear. It was only a matter of time. Mahatma Gandhi and other nationalist leaders broke all cooperation with the British, boycotting goods, courts, schools, and elections. Also, the question of creating a separate Muslim state was becoming ever more pressing. A tentative line was drawn indicating the Islamic area, which would be called Pakistan, but disputes erupted over the region of Kashmir. Put under pressure, the prince of the region signed hastily with India and the conflict over the region began which still takes place today.

Although the transfer of power from Britain to India has been presented as an expert example of Anglo-Indian relations, acclaimed historian Paul Johnson, noting the region’s incredible diversity, states the opposite: “The reality is that the British government simply lost control…In 1945 India was over 400 million people: 250 million Hindus, 90 million Muslims, 6 million Sikhs, millions of sectarians, Buddhists, Christians; 500 independent princes and maharajahs; 23 main languages, 200 dialects; 3,000 castes, with 60 million untouchables at the bottom of the heap…”(Johnson, 470). Additionally, the division of Pakistan from India prompted mass emigration: Muslims moving west to Pakistan and Hindus moving east toward India. Amid this unrest, at midnight on August 14, 1947, Britain withdrew its control, and India and Pakistan became two separate, independent, democratic nations.

The historical aspects have been quoted below from the country studies on Bangladesh published by the Congress Library of United States that describes problems of Muslims in the Indian subcontinent.

In the last quarter of the nineteenth century, under the leadership of a Muslim noble and writer, Sir Syed Ahmad Khan (1817- 98), a beginning was made toward reconciling the traditional views of Indian Muslims and the new ideas and education system being introduced by the British. Syed was responsible for the founding in 1875 of the Muhammadan-Anglo Oriental College (renamed the Muslim University of Aligarh in 1921), where Islamic culture and religious instruction were combined with a British university system. Syed was one of the first Muslims to recognize the problems facing his community under a government ruled by the Hindu majority. He did not propose specific alternatives to majority rule, but he warned that safeguards were necessary to avoid the possibility of open violence between the religious communities of India.

Contemporary India, Pakistan and Bangladesh’s Penal Code is foreign in origin. In the Displacement of Traditional Law in Modern India, Rajeev Dhavan (1989) edited and published Marc Galanter’s article on the possibilities of revival of ‘indigenous’ system. Galanter (1966b) writes:
After Independence "Hindu personal law" was made, based on the social background and traditions of Hindus. But there were more traditions and more fertile backgrounds for making personal law for the Adivasis, available, and though Adivasi traditions with its different method of life, different religion, different language, different methods of jurisprudence were already available, neither a separate personal law of Adivasi was made, nor the traditions of Adivasi sanctified. As a result they were kept away from the law of independent India.

The total system of the Adivasi "Kulas", i.e. Totems, are not based on caste and are outside the purview of the Chaturvarna is in existence even today. In this Nature Worshiper society there is no concept of God, there is no Idol worship, there are no temples. Therefore, Hindu leaders always know that Adivasis do not fit in any of our religious principles, and will be required to give separate identification to them. But it is clear, that they have no intention to allow such separate identification to Adivasis.

India, often told, suffered with colonial rules even after the independence in 1947 and Bangladesh, as well, because the political development was worse in Pakistan in comparison with India. Tensions between the two countries were alarmingly high and were inflicted on the communities of both countries. There were numbers of critical issues especially in the areas of religion, rights and justice. After the independence in both countries, conflict challenged the stability of the society and its egalitarian aspirations inherited from British Colonial rule. In India, communal rift between Hindus, Muslims, Sikhs and with other minority groups, and in Pakistan to Bangladesh, Muslims, Hindus and other minority groups were dangerously high.

Communalism was always a problem in implementing community laws and mediation of conflicts. As present research is focusing on community mediation, so the rights of the individual are being balanced against the rights of the community. The rights interpretation in Personal Law and even the nature of punishment is quite different when considering religious belief and practices.

In every religion ‘Personal Law’ is different, i.e., family matters, marriage, divorce, maintenance, guardianship, custody of the children, adoption, inheritance and succession-and cover normative practices. A sanction for specific cultural and religious practices often created controversy that caused conflicts. Malavi (2000) writes,

In some countries these would be called traditional textual law, and ‘community or communal law’, perhaps customary law, that underpin certain autonomy of ‘cultural rights’ specific to these communities with which the secular state and other community groups, whether in majority or minority, may not interfere. In a growing multicultural, multi-locational and pluralist world, these signs of greater autonomy, marks of distinctive self-identity and sensitivity to the moral heritages of the disparate cultural groups are indeed welcome. Pluralism is the backbone of good and healthy democracy anywhere. In Australia, for example, there is growing movement among the native Aboriginal Black community seeking recognition for its own customary law with its own system of justice, retribution, reconciliation etc, i.e. to say, what is normative to that community, unfettered by the dominant Anglo-Christian and civil system of justice.

1.8 Impact of Islam’s role in the sub-continent

To discuss the impact of religion in the Indian society during the pre-colonial and colonial rule, accurate history on Islam in ruling the subcontinent was difficult to find. Most of the views are ahistoric and sometimes appeared partisan and prejudicial to the researcher. The history grappled with some contradictory views on the invasions and rule of Muslims in India. However, the South Asian History (2004) describes:

Perhaps no aspect of India's history excites more passion and violent disagreement than the evaluation of Islam's role in the sub-continent. On the one hand, the most extreme advocates of the 2-nation theory see the arrival of Islam as overwhelmingly positive - defending every gory invader or brutal conqueror that reached Indian soil - there are others who see the arrival of Islam as an even more destructive event for the people of the sub-continent than colonial rule. .

And while it may be impossible to be completely objective and accurate in evaluating Islam's impact in the sub-continent - a large core of historians would probably reject both these views as being ahistoric - as being highly partisan or prejudicial. Most reasonable historians would probably agree that there is no simple answer to this question. Yet, even well intentioned historians can have their biases. Their assessment of Islam's role in India could depend in large part on their personal priorities and value system. It could also be shaped by the nature and scope of the sources the historian consulted in order to develop his or her point of view.

To some extent, the study of the Islamic period in Indian history has suffered because often, historians with an Islamic background have concentrated their efforts almost exclusively on reading about Islamic rulers and stayed with predominantly Islamic sources of reference while conducting their research. On the other hand, historians with a Hindu background have not always studied the Islamic period in adequate depth. As a result, even while wishing to be objective, they have reinforced theories that are at best only partially accurate. The student of Indian history is then left to grapple with highly contradictory views of Indian history.

For Indians, this problem has been compounded by the impact of colonial rule, and its attempt to foster divisions and heighten tensions between India's different religious communities. A successful fight against colonial rule required the widest possible unity of the Indian people. This often meant that historical disputes between Hindu and Muslim scholars had to be muted.

The fear of inciting communal riots or tensions and religious separatism weighed heavily on many historians. Partition caused such fears to linger on into the post-independence period as well. Because Muslims were a minority in India, there was reluctance on the part of secular historians to critique the role of Islam in any way that could be perceived as 'negative'. Unfortunately this also led to an intellectual vacuum and historical confusion that has now been exploited by less scrupulous historians and even sheer myth-makers.

In order to restore the scholarship of this important period of India's history to a higher and more authentic plane, it is important that India's historians take up this challenging task with even greater devotion to truth and objectivity. At the same time, it is important that students of Indian history learn to separate the crimes of Islamic invaders and conquerors from their treatment of ordinary Indian Muslims. It is also important that we not judge the record of medieval rulers by today's standards of fairness and justice.

1.9 Introduction of the British Penal Code

As numerous scholars observed, ‘psychological indoctrination’ of an elite layer has been identified as an important aspect of colonization and rule in India. This elite layer was English-educated and these British rulers craftily imposed their values and notions to further their goals of domination and exploitation. In 1835, Thomas Macaulay articulated the goals of British colonial imperialism most succinctly: "We must do our best to form a class who may be interpreters between us and the millions whom we govern, a class of persons Indian in blood and colour, but English in taste, in opinions, words and intellect." As the architect of Colonial Britain's Educational Policy in India, Thomas Macaulay was to set the tone for what educated Indians were going to learn about themselves, their civilization, and their view of Britain and the world around them.

An arch-racist, Thomas Macaulay had nothing but scornful disdain for Indian history and civilization. In his infamous minute of 1835, he wrote that he had "never found one among them (speaking of Orientalists, an opposing political faction) who could deny that a single shelf of a good European library was worth the whole native literature of India and Arabia". "It is, no exaggeration to say, that all the historical information which has been collected from all the books written in Sanskrit language is less valuable than what may be found in the most paltry abridgments used at preparatory schools in England”.

As a contrast to such unabashed contempt for Indian civilization, we find glowing references to India in the writings of pre-colonial Europeans quoted by Swami Vivekananda: "All history points to India as the mother of science and art," wrote William Macintosh. "This country was anciently so renowned for knowledge and wisdom that the philosophers of Greece did not disdain to travel thither for their improvement." Pierre Sonnerat, a French naturalist, concurred: "We find among the Indians the vestiges of the most remote antiquity.... We know that all peoples came there to draw the elements of their knowledge.... India, in her splendour, gave religions and laws to all the other peoples; Egypt and Greece owed to her both their fables and their wisdom” (History of British Rule and Colonization in India).

Elaborating on the phenomenon of Law, Culture and the Humanities (at Georgetown University Law Center in March, 1998), Farida Majid presented a paper on Thomas Babington Macaulay and his authorship (in 1835-37) of the Indian Penal Code at a conference on "Law, Culture & the Humanities". She asserted that Macaulay's Penal Code is still the backbone of all civil laws of the whole Indian subcontinent. An interesting fact is that though Macaulay labored over it, prepared and completed the draft of the Code before he left India for good in 1837, the East India Company did not implement it until after the 1857 Sepoy Mutiny when the British officially endorsed India as part of its Empire. The Code was officially enacted upon on January 1, 1861.

Farida also mentioned that it struck her, while she was researching the history of Indian law, book after book dwelt upon postcolonial law, but hardly any word upon what was the law that these colonial attempts at lawmaking were displacing. The colonial lawmaking attempts were obviously to make the law more authoritarian and centralized. Yet, peculiarly, only a century earlier, the Eighteenth century English and European visitors to India and commentators on India's civic society were glowing in their remarks about the wonderful Indian legal system. Farida (2004) noted,

..A change of attitude took place within a period of 50 years on behalf of the colonialists. It is our duty to retrieve the history of law of India in the pre-colonial days. There is a woeful inadequacy of modern scholarship in this field.

Explaining the phenomenon of cultural colonization, an article on History of the British Rule and Colonization in India, quoted, “Naturally, British-educated Indians absorbed and internalized such characterizations of themselves and their past. Amongst those most affected by such diminution of the Indian character was the young Gandhi, who when in South Africa, wished to meet General Smuts and offer the cooperation of the South African Indian population for the Boer war effort.

In a conversation with the General, Gandhi appears as just the sort of colonized sycophant the British education system had hoped to create: "General Smuts, sir we Indians would like to strengthen the hands of the government in the war. However, our efforts have been rebuffed. Could you inform us about our vices so we would reform and be better citizens of this land?" to which Gen.Smuts replied: "Mr. Gandhi, we are not afraid of your vices, we are afraid of your virtues". (Although Gandhi eventually went through a slow and very gradual nationalist transformation, in 1914 he campaigned for the British war efforts in World War I, and was one of the last of the national leaders to call for complete independence from British rule.)

It is not my imperative to speak on every aspect of history or civilization, as those aspects are wide. In short, my study begins with the history related to the transitional factors of conflicts and community mediation.

1.10 Cultural Diversity after Independence

Bangladesh is a small country with an area of 142,776 sq. kilometres. It has a population of about one hundred and thirty million. Bangladesh is almost surrounded by India with a small part of its eastern border shared with Myanmar. Bangladesh won its independence from Pakistan in the year 1971. It was a greatest achievement of the Bangladeshi Awami League (AL), one of the progressive political parties of Bangladesh led by great leader Bangabandu Sheikh Muzibur Rahman. Along with other progressive political parties, the AL has been advocating for democratic values, secular state systems, human rights, the emancipation of women, independence of the judiciary, social security and the empowerment of common people. Under the leadership of Bangabandu Sheikh Muzibur Rahman, the Awami League won the 1970 election in Pakistan.

At that time the Pakistan Army was ruling the State. Instead of transferring power to AL, the Military Government launched a genocidal war against the innocent people of East Pakistan on 25th of March 1971 and arrested Banghabandu. Responding to the declaration of independence made by Bangabandu before his arrest, AL leaders, as the elected representatives of East Pakistan, formed a government in exile. The joint forces of the Indian Army and Freedom Fighters defeated the Pakistan Army on December 16, 1971. The whole country was ravaged by the nine month long bloody war of liberation. Banghabandu was released from Pakistan jail on 10th January 1972 and applied himself to the reconstruction of the newly born nation. The defeated reactionary forces of Pakistan and their Bangladeshi collaborators staged a military coup on August 15th, 1975 and assassinated Bangabandu and 18 of his relatives.

The vast majority of the population of Bangladesh is Muslim by religion. Most are intensely secular but are sometimes misled by the conservative and fundamentalist leaders. Various groups often use religious sentiments for their political gain. General Zia‑ur‑Rahman came to power as a Chief Martial Law Administrator and ruled the country from 1977‑1981. By this time he had organized a so called referendum in May 1977 and Presidential elections in 1978. On September 1st 1978, General Zia founded a conservative nationalist political party named the Nationalists Party (BNP). General Ershad came to power after the killing of Zia-ur-Rahman and had established his authoritarian rule until December 1990. Also he founded another political party namely the Jatiya Party (JP) - which means the Nationalists Party.

After the death of General Zia, his wife held his position as party chief and won in the election of 1991 with the help of Islamic political parties like the Jamaat-E-Islam (JI) and others. She ruled the country until 1996. Awami League came to power in the year 1996 under the leadership of Sheikh Hasina - 21 years after losing power in 1975 - but the party was not strong enough to face the fundamentalists and conservative right-wing political parties who were backed by Pakistan and some of the Arab countries. Also BNP, JP and the JI have received patronage of the civil and military bureaucrats. On October 1st, 2001, a general election was held under Care-taker Government, under the supervision of the army. The BNP, JI and allies formed the government. On the contrary, the AL, became the main Opposition party in Parliament.

Hashmi (2004) Writes,
Since Bangladesh is the third largest Muslim country in the world (after Indonesia and Pakistan), it is only natural to assume that Islam will play an important role in moulding its politics and culture. If mass poverty, illiteracy and unequal distribution of wealth have any positive correlation with Islamic resurgence and militancy, then Bangladesh has to be a fertile breeding ground of what is wrongly defined as "Islamic fundamentalism".

Of late, the Awami League (the party under Sheikh Mujib championed the cause of greater autonomy for East Pakistan, which ultimately lead to the independence of Bangladesh) has been projecting its main political opponents—the Bangladesh Nationalist Party (BNP) and the Jamaat-i-Islami (partners in the BNP-led coalition government since October 2001)—as "fundamentalist" with a view to gaining political leverage after its abysmal performance in the parliamentary elections held in October 2001.

However, despite its poverty, backwardness and the preponderance of Islamic ethos in the mainstream of its politics and culture, Bangladesh is not just another Afghanistan, Iran, Saudi Arabia or even Pakistan. Despite having many striking similarities with the Islamic movements elsewhere, their Bangladeshi counterparts have striking dissimilarities with them as well.

As former Chief Justice and Chief Adviser to the Caretaker Government spoke in the publication ceremony the book titled Bangladesh National Culture and Heritage[3]—“At present, we are reluctant to pay much attention to history. In this sense, their work is appreciable. However, because of political, social and religious impact sometimes it is difficult to point out the facts of history” (Daily Star: 2004).

Harun-or-Rashid (2002) explained,

The core of politics is power. It is indeed a power relationship. In other words, it is a struggle for power. Politics involves conflicts and conflict resolutions. Thus, Alan R. Ball defines politics as “an activity concerned with conflict, compromise, decision-making, power and authority". (Modern Politics and Government, London, 1977, p. 30). There must have issues, actors, actions, incompatibilities and the ways and means of making peace and accommodation in politics.

Again, every political system is founded upon certain core values, beliefs and behaviors what may be called political culture…According to Oxford Dictionary, crime is 'an offence punishable by law.' It is an evil act of doing harm or injury to others….Criminalisation of politics may be termed as a systematic act of subversion of the usual course of politics by illicit means intended to attain private gain or coterie end.

It gives rise to a kind of situation where there are a great deal of erosion of values, organized violations of norms, rules and principles, dearth of security of life, liberty and property, lack of transparency and accountability, dominance of muscle power and black money, plunder of resources, rampant corruption, denial of justice and rule of law, contraction of popular sovereignty leading the underworld and unconventional forces to establish substantial control over the political process.

The history and development of political philosophy, and legal thoughts in Bangladesh are rooted in the culture and heritage of the country. The country is struggling with intercultural conflicts between secular and religious groups since its birth. The trends of judiciary and sociology of modern Bangladesh law indicates that over the last 33 years, it has been struggling with inherited judiciary. Politicisation of judiciary raised questions on its free, fair and independent functioning.

1.11 Backlog in Bangladesh’s Judicial System
Backlog of cases in the courts, and widespread judicial corruptions put the condition of law and order situation in Bangladesh is at stake. The judiciary cannot function independently due to intense politicization of the justice system. The Daily Star (2004) editorial writes,

That statistics can speak more convincingly than words is amply illustrated by some data provided by Supreme Court Bar Association president Barrister Rokanuddin Mahmud at a requisition meeting of the council held Wednesday. According to him, 99 percent of cases are refused bail in the magistrate's court, while 90 percent do not get bail in the sessions judge's court. As a result, 90 percent of the defendants in criminal cases turn to the High Court's motion benches with their bail peti-tions.

The three criminal benches there are in the High Court do not have any even distribution of workload among them. One of these benches purportedly passed one motion in the last two years. By a steep contrast, 700 to 800 cases hang fire in another bench, while the third one is wrestling with 700 cases. This could be evocative of certain reservations about the quality and efficiency of the judges. The practising Supreme Court lawyers have not minced words to say so.

Whilst, the constitution of criminal benches has been called into question, the Bar leaders despaired of fre-quent dissolution and reconstitution of benches on 'unknown grounds'. Dr Kamal Hossain thought these bred questions in the public mind about the process…It is worthwhile to note though, that the Chief Justice reportedly called 11 senior judges to his office and told them not to grant wholesale bail and stay.

The Bar president went so far as to suggest: that the CJ 'is not being able to constitute benches independently, be-cause of instructions from outside'. Does it mean that even the highest judiciary is not impervious to political influence peddling? …What all this leads us to conclude is that separation of the judiciary from the executive is the crying need now, if we are to resurrect the dwindling public confidence in the rule of law.

For the vast majority of the people, justice is hardly accessible and affordable. Some experts expressed their concerns saying that without implication of some remedial measures on the part of the state, justice system would rather produce inequality and injustice. The Chief Justice of Bangladesh Syed JR Mudassir Husain said in a conference held at Dhaka (2004)[4] that if equal justice could not be ensured for citizens irrespective of their ability to pay, the rule of law and justice in its true sense would suffer even through the justice system might continue to function. If money is needed for a justice delivery system that money must be available to all, including the poor litigants and disadvantaged groups (New Age).

Alam (2000) writes in his article on ‘A Possible Way Out of Backlog in Our Judiciary’ with suggesting,

Reasons and conditions exist in a long win or lose battle where the parties fight in a 'do or die' manner with no or little perspective of any consensual settlement move coming from any side which could steer the dispute to win-win resolution. Consequential frustration, desperation and costs become too expensive for any judicial system to sustain. Earlier, moves had been made to clear the procedural blockages of our civil justice system though success could not be achieved. Mere amendments of the CPC within the existing trial philosophy may not be the best way to look for the gateway in the blind alley. Before it is too late, innovative approaches are needed to live upto the uphill tasks of reconstructing our judiciary.

Focusing on the experiences of some other countries including the USA and with an optimistic view that our age-old culture provides to settle any dispute through mediation, a carefully devised mechanism which involves proper court administration, effective case management and amicable consensual dispute resolution, can revolutionize our entire civil justice delivery system.

The essence of the concept is that after the filing of the plaint and submission of the written statement, attempts would be made to resolve the dispute through various forms of alternative dispute resolution (ADR) by early judicial intervention. In short, it is mandatory recourse to ADR or CDR (Consensual Dispute Resolution) by the trial judge's order in the pre-trial stage of a case. Court administration and case management are to prepare the ground for the success of ADR.

It may be mentioned that in some of the states of the USA (for example California) 90 per cent of the cases are resolved at the pre-trial stage through ADR by early judicial intervention, and only the remaining 10 per cent go to the trial. In our country the picture is just the reverse….Under existing laws of Bangladesh it is not possible to cover all the aspects of court management and achieve it objectives, nor is it possible to introduce a full court-sponsored system of ADR. It shall require new enactments or amendments in the CPC.

But at the beginning, it may not be advisable to go for radical enactments or amendments, rather it would be good to proceed with court management and ADR depending, wherever possible, on pre-existing laws and rules, at least to achieve limited objectives. This can be demonstrated by a pilot project, preferably by some family courts, using pre-existing rules, and also expanding their procedural authority by a special order of Supreme Court. Success of a pilot project may prepare the ground for necessary legislation for the agenda of full case management and mandatory ADR by judicial intervention.

1.12 Islamization of Bangladesh: Consequence for Justice System

On the Islamization process Wlker (2004) writes,

The partition of India led to chaos and hundreds of thousands of people were murdered. After this chaos divisions would emerge between East Pakistan and West Pakistan and further bloodshed would occur, with the outcome being the sovereign nations of Bangladesh and Pakistan. However, while India remained to be multi-religious, the opposite happened in Bangladesh and Pakistan and religious minorities faced enormous problems and persecution…. To make matters worse both Bangladesh and Pakistan would witness the gradual Islamization of their societies, notably Pakistan, and massive corruption and persecution of women would continue.

The Islamization of both nations was especially traumatic for Hindus and Buddhists in Pakistan and Bangladesh; and not surprisingly Islamic persecution of minorities in both nations re-awakened anti-Islamic feelings in India…. For unlike the destruction of Buddhism in Afghanistan, which happened centuries earlier because of Islamic conquests, persecution and controlling all leverages of power; the Islamization of Bangladesh and Pakistan took place in the twentieth century and continues today. Yet, why Buddhism and Hinduism being allowed to be destroyed in both nations? After all, Buddhists in Bangladesh were a small minority and they could never threaten Islam; the same applies to Hindus in Pakistan.

Anderson (1996) writes,

In contemporary debates regarding Muslim identity in South Asia no issue is a prominent or as hotly contested as the character and social role of Islamic law. Though the controversies are directly relevant to present-day concerns the questions themselves are neither new nor innocent of colonial influence. The existing corpus of Islamic law in the subcontinent owes a great deal to the legacy of colonial jurists who systematized and gave a shape to Anglo-Mohammadan law over many decades…in their preference for textual sources the courts were inclined to endorse highly orthodox forms of Islamic Law which were applied more widely and rigorously than in the precolonial period ultimately contributing to new politics of Muslim identity in the twentieth century.

Netherlands Institute of Human Rights (2004) describes, “In more and more countries specific practices have been spreading, as a result of the "islamization" process of Muslim communities. This publication documents the case of Bangladesh, where self-appointed village tribunals are taking the decision (fatwa) to judge and execute women accused of adultery. These fatwas are illegal; however the case of Bangladesh shows that in spite of pressure and legal actions from the democratic forces, the State only mildly reacts to this breaching of the law.”

Hashmi (2004) Writes,

The fatwa controversy came into the limelight in the 1990s after the local media, NGOs and donors took exception to the persecution of rural women in the name of Islam. Poor rural women, often victims of rape by influential villagers or those alleged to have cohabited with their former husbands after being divorced, are punished for committing adultery. Sometimes influential village elders force them to remarry someone as penance for committing adultery.

The village mullah, totally dependent on village elders for sustenance, plays a vital role in justifying the "judgments" in the name of Sharia law. In late 2000, one Shahida, a village woman at Naogaon district in northern Bangladesh, fell victim to a salish verdict and was forced to commit suicide. Wide publicity of the incident led to the High Court verdict declaring the dispensing of fatwas illegal on January 1, 2001. The Jamaat-i-Islami, several Islamic groups and hundreds of ulama condemned the judgment as un-Islamic and branded the judges as murtads (apostates).

Maulana Fazlul Karim, the influential pir (Sufi) of Charmonai and chief of the Movement for the Islamic Constitution (who is avowedly opposed to the Jamaat and female leadership), also condemned the judgment. Mufti Amini threatened to launch a "Taliban-style Revolution" in Bangladesh to counterpoise the "enemies of Islam". Islamic zealots went on a rampage at Brahmanbaria, Chittagong and certain other places, chanting anti-Government and pro-Taliban slogans: "Amra sabai Taliban, Bangla habe Afghan" (We are all Taliban and will turn Bangladesh into another Afghanistan). Although most liberal-democrats favoured the anti-fatwa judgment, the Government, apprehensive of a backlash, was thinking in terms of reviewing the judgment.

Soon, the polarized polity witnessed a showdown between the pro-fatwa clerics and anti-fatwa, pro-NGO Nagorik Andolon (Citizen’s Movement). Among others, the Pir of Charmonai, Mufti Amini and Mufti Azizul Haq organized a grand pro-fatwa rally in Dhaka on February 2, 2001. Declaring the NGOs as the "number one enemy" of Islam and Bangladesh, the clerics blamed the Awami League government for appointing judges allegedly biased against Islam. The pro-NGO and anti-fatwa Nagorik Andolon confronted the clerics and asked the Government to ban all religiously motivated political parties.

Under confusing and mysterious circumstances a police constable was killed inside a mosque at Muhammadpur in Dhaka. The Government put the blame on a section of the clerics for the murder and also for possessing "time bombs", said to have been recovered from a madrassah at Muhammadpur. According to the Government, Islamic militants killed the police constable while Shaykh-ul-Hadis Azizul Haq, the chief of the pro-BNP Islamic Unity Front, was present in the mosque.

The Government also claimed that the Ulama Parishad (Council of Clerics), an Islamic organization, had been collecting money for jihad. It produced a "receipt" for the collected amount from a madrassah at Muhammadpur. In view of the prevalent situation, while the Awami League has been trying to single out the rival Islamists and BNP as pro-Taliban terrorists and the BNP has been singling out the former as opportunist, one may not take the "evidence" seriously. The Government version of the murder of the policeman in the mosque lacks credibility as well.

Meanwhile, the Government was considering the formation of a Sharia Board to issue fatwas in accordance with Islam and on behalf of the state. Liberal democrats and leftists opposed any such move to institutionalize fatwa through the state machinery. However, one may set aside the liberal-democrats’ reservations about the mullahs’ authority to issue fatwas as they represent a minority view, of sections of the urban middle and upper classes.

The acceptability of the fatwa-dispensing mullahs in the countryside is reflected in several violent incidents. For instance, in January 2001, villagers at Nandigram in Bogra district damaged a vehicle of Bangladesh Television crew who went to interview one Maulana Ibrahim, who in 1995 came to the limelight for his famous fatwa stirring up a big mob against a local NGO. Most villagers were in favour of the cleric and regarded the TV crew as pro-NGO.

The Muslim community at the grassroots level favours fatwa as the fastest and cheapest way of getting justice. The average mullah’s revulsion for the NGOs is well taken by Bangladeshi Muslims at the grassroots level as well. This is reflected in the popularity of scores of mullahs-cum-demagogues, including Maulana Delwar Hussein Saidi (a Jamaat MP since 1996), Pir Fazlul Karim, Mufti Fazlul Haq Amini and Mufti Ubaidullah and others. Saidi’s video and audiocassettes containing rustic speeches and extreme views, sell in their thousands throughout the country. One year after the controversial anti-fatwa judgment, he felt that "fatwas should guide the judiciary and not the other way round".

On February 6, 2002 some clerics commemorated the deaths of several Islamic activists who died in police firing protesting the anti-fatwa judgment in 2001. Bengali Muslim support for the mullah is well reflected in some popular Bengali songs, played by taxi drivers and others at the grassroots level. One such song depicts the plight of the under-employed madrassah graduates and their prejudice against women and modernization: "What is the use of studying the Quran and Hadis at the madrassahs if they are obsolete in the courts of law? What is so great about being a man if the country is under female leadership? What is the benefit of manhood if the universities in the name of co-education promote lewdness?

1.13 Critical Research Agenda

The above overview of changes in society, as well as current trends and scope of justice system, prompted the following research agenda. These research questions emanated from the contexts of the inaccessibility of justice to the masses.

· What national policies have been adopted to ensure community justice for the people of Bangladesh?

· Does the government have clear goals to remove existing barriers to accessing the justice system?

· Would shalish play a positive role in judicial reform?

· Does shalish reduce the cost and time required to resolve disputes in the community?

· Does shalish help increase access to justice for traditionally disadvantaged groups, i.e., specially women and children in Bangladesh?

· What factors are involved in strengthening community dispute resolution?

· What factors might be emphasized for broader legal reforms?

· What steps are needed to divert political energy from a slogan to an action for promoting the rights of women or poor or minority groups in the society?

· What kind of strategies could help the people access easy, accessible and effective justice?

1.14 Research Methodology

This literature review is based on compiling and reviewing of books, reports and documentation on shalish (mediation) in Bangladesh. The material was taken from published sources and from informal records and documents available within Bangladesh and Canada. The researcher used ‘content analysis’ to confirm what has been widely documented.

Dr. Dean E. Peachey, Dean of Menno Simons College affiliated with University of Winnipeg, Canada supervised the literature compilation and The John Howard Society of Manitoba and Bangladesh Foundation of Human Rights of Comilla provided material support and assistance.

1.15 Key Findings and Recommendations:

Based on the literature, it has established that:

· Shalish is a traditional and democratic mode of adjudication in Bangladesh at the village level. As an out-of-court medium of settlement of disputes, shalish could provide greater access to justice for the common people of the country.

· Shalsih is a participatory democratic process that serves as a form of social control over a given victim. The process creates human consequences, defining how the individual can live in the community.

· Shalish is not intended to fill the gaps within the more complex and adversarial procedures of law but primarily shalish could deal with one and only one socio-political setting at the village level in Bangladesh.

· In addition there has been an increase of crimes against women and acts of violence by the fanatic religious fundamentalists by issuing fatwas. This has become a serious problem for judiciary. There is no effective ways to respond the crime against women in Bangladesh.

· The intimate interaction of legal administration and indigenous identity formation lent scripturalist Islam an enduring quality that has continued into the post-colonial period, i.e., in present Bangladesh.

· More important, the present judiciary in Bangladesh does not ensure an impartial, neutral and objective system for resolving conflicts in the society.

· There was no specific research in the national level on modernization of shalish and its implementation at the grassroots level. Field surveys instruments need to be developed in order to do an in-depth study on shalish in Bangladesh.

· An in-depth field study on shalish is required to focus on insightful investigation of the theme to analysis comparative changes in alternative dispute resolution in Bangladesh at the rural areas.

1.16 Conclusion

These primary observations confirmed, that even though the Bangladesh judicial and legal system has a tradition of common law culture and a long record of delivery of justice with its adversarial or accusatorial features, also there is an indigenous or traditional shalish of community-based mediation that had thousands of year’s history of dispute resolution. With a minimal government role, this system is representing two-thirds of its population despite limitations.

Decentralized and empowered local government, with devolution of key service functions including community dispute resolution with proper resource allocations, could play a vital role in peacebuilding and development at the grassroots level. Gram Panchayet being the closest representative of the people, are in best position to understand community problems and peoples’ need for quick, acceptable and affordable justice.

Therefore, for a community based justice system in Bangladesh, there is a need of strong political support, adequate human resources, sustainable financing, relative parity and adequate legal foundations for shalish.

Gradually, the creation of a national center to establish a model for dispute resolution and to provide information and training on shalish is a requirement for strengthening rural level justice system in Bangladesh.###


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[1] Reviewer’s clarification
[2] Author’s note
[3] The Centre publishes the book for Social Science and Public Policy Research of Independent University Bangladesh (IUB).
[4] The Ministry of Law and Justice organized the conference in association with CIDA.

By Delwar Jahid
Research Fellow, St. Paul’s College, University of Manitoba
Executive Director
Manitoba Centre for Social and Peace Studies, Inc.
Justice Resource Centre
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First published at NFB on Monday December 06 2004 23:29:03 PM BDT