Lobbying and ADR

Lobbying

The term ‘lobbying’ is used both in ‘positive’ and ‘negative’ sense. The polite use of the term lobbyist can be traced as ‘relation officer’, ‘lianso officer’, advocacy’ etc,. In many countries ‘lobbying’ is lawful such as USA but it is sometimes considered as ‘broker’ or ‘pimp’.We are lobbying for ensuring rights, human rights and fundamental rights of the peoples of Bangladesh. We organize seminar, workshops, conferences, table talk, training etc, as part of our initiative to maintain links with respective authorities and also to fulfill our goal towards a ‘just society’. We are lobbying for financial aid, amendment and enactment of law, proper implementation of law, national, regional and global participation on rights issues, legal studies, ensuring quality judgements through proper research, drafting and perusal of papers. We need qualified and professional lawyers, judges, justified laws and logical procedures with all financial and logistic supports for ensuring justice. We are working for legal networking and technology based legal system for ensuring rule of law and preventing corruption. We work at individual, group and institutional level. Do you need ‘legal aid and services’? Call us or communicate us. Most of our services are free and we charge nominal fees for some selected categories.    

ADR

ADR is a form of legal remedy providing through formal or informal way in Bangladesh. Ain-qanoon.com works in collaborate with many organizations to resolve disputes through amicable settlement. We have a set of expert counselors’ or ‘mediators’ for facilitating ADR. We are linked with BLEST, a legal aid organization.
We are involved with settlement or resolving industrial dispute, family dispute, compoundable criminal cases, land disputes, service disputes, tax disputes, commercial disputes, intellectual property disputes etc,. Mr. Ahamuduz zaman, the founder of this site has written on ‘ADR’ in his most acclaimed book titled ‘legal History and Legal System of Bangladesh”.We are also assisting litigants to receive legal aid from government funds headed by a Judge in every district and also to take assistance by the panel of mediators from any corner or districts of Bangladesh. The NGO’s working in ADR, legal aid and services included ASK, BLAST, Madaripur legal Aid, BLEST, BNWLA, BELA, BRAC etc,.Need ADR services, please call us or communicate us.


Legal Aid and ADR (Alternative Dispute Resolution)

 

Right to the equal protection of Law, equality before law, prohibition of retrospective effect of law and the right to consult with legal counsel are fundamental rights guaranteed by the constitution of Bangladesh. It is the fundamental responsibility of the state to ensure rule of law and access to justice. If any citizen fails to get justice due to his financial inability, the state is bound to help him. In Bangladesh, the Legal Aid and Services Act, 2000 provides some guideline to assist a victim person financially if he is unable to go through the Court procedures for his financial crisis. The Code of Civil Procedure also provides some guidelines to help a pauper to go through the legal formalities to get justice. The legal system of Bangladesh is not only adversarial but also inquisitorial in many aspects. Even a criminal case may be compounded with the permission of the Court or without the permission of the Court if it comes with in the lists of the offences as mentioned in the schedule of the Cr P C as compoundable offences.

 

 

ADR

The word ADR stands for Alternative Dispute Resolution. It is basically applicable for civil suits. However in modern time ADR is applied in criminal cases and also on commercial disputes. The parties to a dispute may settle the issue with the help of the Court or without the help of the Court or even outside the periphery of the Court.

 

Different forms of ADR

The different forms of ADR can be discussed below:

 

  1. Arbitration: The Arbitration Act, 2000 is the existing law on arbitration. In arbitration, the decision is given by the arbitrator which is known as arbitral award. There is an Arbitration Tribunal in Bangladesh that can exercise its jurisdiction over disputes arising out in anywhere of the world.
  2. Mediation: In mediation, a Mediator shall facilitate the whole process to come to a decision in between the parties on the disputed issues. The mediator shall not impose any decision like an arbitrator.

III. Negotiation: It means the parties shall come to a decision with their own initiative without the interference of a third party. A third party may initiate for negotiation but shall not interfere in the negotiation process of the conflicting parties.

  1. Shalish: Shalish is a bangla word that means arbitration. It mainly reflects the village arbitration on petty issues under the Village Court Ordinances or the Conciliation of Municipal Board Ordinances or even under the Family Court Ordinances by the Chairman of the Union Parishad or Municipality Corporation or the City Corporation.
  2. Med-Arb: It is the blending of mediation and arbitration. Sometimes the mediator shall facilitate and on some cases he may decide on the disputed issues which will be binding upon the parties to follow.
  3. Conciliation: The function of a conciliator is just like a mediator. A conciliator tries to facilitate the parties on the conflicting issues and reduce their grievances by conciliation.

VII. Early Neutral Evaluation: In respect of a dispute, an early neutral evaluation may be necessary to decide the nature and consequences of the issue. The working of an investigator or an inquiry officer and that of an early neutral evaluation officer is similar. The early neutral evaluation is necessary to find out the disputed issues.

 

VIII. Expert Determination: In modern times, an expert determination is regulated by the substantive laws of the land. In Bangladesh, there is a provision of expert opinion in the Evidence Act, 1872. However, expert determination on ADR is a different issues that is conducted outside the purview of the Court.

  1. Ombudsman: An Ombudsman is a person who holds the post to ensure justice by giving an opportunity to the accused within the legal framework. In Bangladesh, there is a Tax Ombudsman.

 

It is important to note that an arbitrator or negotiator or mediator must be a person with neutral and impartial mind with proper knowledge on the issue. He must have patience to hear both the parties and should set up a goal to settle the matter without any hassle or with a further proceeding in the court. The words BATNA WATNA and MLATNA are sometimes used to identify the various categories of ADR.

 

 

ADR in Bangladesh

The Government is thinking to use ADR in a wider range or varieties of issues. However, the present trend of ADR system is not satisfactory. There are many hindrances for this failure of ADR systems in Bangladesh. The judges or lawyers are not well-trained or even the parties to the dispute are not interested for a quick and amicable settlement of the issues.

ADR and the CPC: Sections-89A and 89B of the CPC deals with the ADR systems under the Code of Civil Procedure. However, Order 23 of the C P C also discusses on the issue.

ADR and the Arbitration (Shalish) Act: The Arbitration Act, 2000 discusses on the contractual obligations where any provision of the contract states the settlement of the dispute between the parties through arbitration. No Court can try such matter without sending it to the Arbitration Tribunal.

ADR and the Cr P C: Section-345 of the Code of criminal Procedure and also Schedule-II of the Code discusses on the ADR system on criminal offences with or without the permission of the Court. The offence for which arbitration is possible is known as compoundable offences.

ADR and the Artha Rin Adalat Ain: In the Artha Rin Adalat Ain, 2003 there is a provision of resolving the dispute through settlement conferences or arbitration or mediation at the initial stage or even in the appeal. The provisions of settlement conference is now repealed but Mediation is made compulsory.

ADR and the Family Court Ordinance: Regarding marriage, divorce, maintenance, dower etc. the parties to the disputes may go to the Family Court who shall try to settle the issues through ADR and failure of which the procedure may continue.

ADR and the Insurance Act: Under the Insurance act, 1938, there is a provision of ADR on all insurance related matters among the insurer and the insuree. The insured amount and fixing of the damages in case of fire or marine insurance are commonly settle by the ADR.

ADR and the Negotiable Instrument Act, 1881: If any cheque is dishonoured, a criminal case can be filed under this Act. After filing the case both the parties may settle the issue through negotiation and withdrew the case with the permission of the Court.

ADR and the Village Court Ordinance: On petty issues below Tk.25,000 (twenty five thousand), a criminal case can be filed but the case will be tried by the Villgae Court. Thrial procedures of the village Court is that of a shalish between the parties.

ADR and the Conciliation of Disputes (Municipal Areas) Board Act, 2004: In respect of a dispute below Tk.25000 in the metropolitan cities or Pourshava, the parties may file a case which will be exclusively tried by the Board constituted under this Act. There is a schedule of offences and disputes to be tried by the Board under this act.

Therefore, the provisions of ADR are common in different laws of Bangladesh but not consolidate. Therefore, the ADR system is not institutionalized in Bangladesh. The energy regulatory commission or the Cooperative societies may conduct their problems following the ADR systems.

 

It is a common concept that if the ADR system is introduced, the backlog of cases will be reduced and the harassment of the parties of a suit will also be lessened. However, it will also save time, money and energy of the parties and the judges as well. A portion of the lawyers considers that if the number of cases are reduced their income will also be reduced for which they are not dedicated to this system. This is not a right concept rather the lawyers should have a new venture to increase their income by negotiating the whole process. It is further noted that in ADR system the Judge or the Court acts like a facilitator not like an arbitrator. The Court assists the parties to resolve the dispute through mutual understandings not imposes any decision on them. In practice, many judges imposed decision to fulfill their statutory obligation under the CPC to resolve the disputes on monthly basis that shows their performances.

 

 Legal Aid

 

When a person cannot defend himself, it is the duty of the State to provide him legal assistance either by providing money for the suit/ cases or by appointing lawyer on behalf of the person. The constitution also states this matter in articles 33, 31, 32 and 35.

 

 Legal aid and access to justice

 

Right to the protection of law is a fundamental right. When any person will be arrested, he must be given a chance to defend himself and also to consult with his lawyer. If any person fails to appoint a lawyer on behalf of himself, the state or the concerned Court shall appoint a lawyer on behalf of that person especially in criminal cases. A legal aid can be given not only in the form of monetary help but also in other forms like appointing a lawyer, giving idea on legal suits, counseling the parties, assist in ADR etc.

 

The word access to justice means that all the citizens of the country can take the resorts of the help of the judiciary to ensure their rights, if violated. “Access to justice” is a fundamental rights and one can file a writ to the High Court Division to ensure this right. However, it is to be ensured primarily by the police, subordinate courts and the Advocates to the state like Public Prosecutors, Government Pleaders etc. If any person is killed extra judicially, it means a violation of the right to access to justice that ultimately hampers the rule of law.

 

Costs and compensations- a form of legal aid

 

The Subordinate Civil Courts in any civil suit can impose costs to any parties, if they try to delay the proceedings in an unfair means which is mentioned in section 35, 35A and 35B of the CPC. The object in awarding costs to a litigant is to secure to him the expenses incurred by him in the litigation. Section-95 of CPC provides that on the application of the defendant the Court may award compensation for obtaining arrest, attachment or injunction on insufficient grounds which shall not exceed ten thousand taka. Order-XXV of CPC deals with security for costs.

    Section-10 (2) of Artha Rin Adalat Ain also deals with costs. It is also discussed in many other civil laws. However, section-250 of the Cr P C also provides a provision for awarding compensation in vexatious or false suits. Any Civil Court can provide costs and compensation under section-151 of the CPC as an equitable remedy to ensure justice.

 

 

LASA, 2000

 

Legal Aid and Services Act, 2000 is the main law that provides legal aid to the various persons in Bangladesh. The definition of legal aid is given in the Act that states that it means to give legal assistance to the underprivileged or pauper or other persons deprived for socio-economic reasons to the access to justice. The assistance will be given in the form of money to the lawyer at any Court or to file a suit or relevant expenditures for already filed suits or to give remuneration or honorarium to the arbitrator or mediator etc. The Act also states that there will be an association to be known as “National Legal Aid Association” to fulfill the goal under this Act. The association will work under the chairmanship of the Minister of Law, Justice and Parliamentary Affairs and also with a number of persons as members of the Association including a Director who will be the member-secretary of the Association. There will be a District Committee headed by the District and sessions judge. Primarily, they will consider the application for legal aid and may grant or reject the application. They will work under the supervision of the Association. Even the Government may appoint Upazilla or Union Legal Aid Committee. As per the existing law, there is a fee structure for the appointed lawyers who will work for the persons under this Act. However, no court fees is necessary for collecting relevant papers from the Court under this Act.

 

Pauper suit under the CPC

 

There is a provision of legal aid under the CPC in Order XXXIII for the paupers or indigent which is existed for more than hundred years. A person is a “pauper” when he is not possessed of sufficient means to enable him to pay the fee prescribed by law for the plaint in such suit, or, where no such fee is prescribed, when he is not entitled to property worth Five thousand (substituting one hundred taka by amending Rule-1 order XXXIII on 22nd February 2006) Taka other than his necessary wearing- apparel and the subject-matter of the suit. Order-XLIV of CPC deals with appeals by indigent persons.

 

Legal aid of the NGO’s in Bangladesh

 

Many NGO’s are providing legal aid in Bangladesh like BLAST (Bangladesh legal Aid and Services Trust), Mdaripur Legal Aid Association, Ain-O-Shalish-Kendro, BNWLA, BELA etc. this NGO’s have their own model for providing legal aid and also has a list of panel lawyers. They are receiving financial aid from many international donor agencies showing their projects on legal aid. How much to this aids are properly utilized is a question? But still we should appreciate them for their initiatives. It is a matter of great regret that on family affairs or disputes relating to family affairs many NGO’s are instigating women’s for filing false suits in the name of dowry or torture etc. This is a black history of our existing legal aid systems especially providing by various NGO’s.

 

 

From the above discussion we can say that legal aid and ADR is not a new model rather prevailing for thousands of years. It is a fundamental rights as part of the access to justice or right to protection of law or of quick disposal of cases. The state can easily monitor or efficiently execute the existing legal aid systems by enacting a regulation in this respect. In 2012, the provisions of Cr P C and CPC was amended to ensure compulsory ADR system in Bangladesh. The provisions of plea bargain is not yet implemented in Bangladesh. Many Criminal Courts discharging criminals/ accused persons without provisions of ADR by mentioning non-prosecution by the parties. ADR and legal aid should not be used as a propaganda for NGO's to get foreign donations.

(Compiled by: Ahamuduz Zaman, Founder: ain-qanoon.com).

Law Guru

Founder: Ahamuduz Zaman (academician, researcher, author, columnist, lawyer, mentor, human rights activists).

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