Research on the Core Issues associated with the Functioning of Shalish Kendras and Village Courts in Madaripur

Prepared by ROHINI V MENON, Participant
Certificate Course on Alternative Dispute Resolution
South Asian Institute of Advanced Legal and Human Rights Studies (SAILS)

 
Introduction

Shalish is primarily an outgrowth of rural power structure. Derived from an Arabic word meaning ‘arbitrator’, Shalish can be understood as a process of mediation with much emphasis on the people who act as mediators or ideally “Shalishkars”, who are rich, powerful and socially accepted persons.

In this research report, the researcher has used the descriptive method and hence sequence of issues is not maintained. The core issues that have emerged out of the observations of three cases in Shalish kendras and one case in the local Village Court are encapsulated and the findings are outlined under different headings in the following pages.

Rationales of Research

This research is intended to help the Shalish kendras, the Village Courts and the Madaripur Legal Aid Association linked with Shalish kendras to analyse their functions and adopt the recommendations and findings in the most benefitting manner to improve the quality of their functions.

Justifications

This research is attempted to analyse the pros and cons of certain principal issues associated with the functioning of Shalish kendras and Village Courts in Madaripur, Bangladesh.

Analysis

The researcher has used descriptive method for her research.

 
(A) Reasons for using Shalish/Village Courts for dispute resolution

(1) In the first case, the disputants had an urge to find a solution to their problem. Owing to their social, economic and political incapacity, they preferred a local settlement, rather than taking the matter to court. The Shalishkars are community leaders and trained members of the Community Base Organisation and are socially accepted individuals.

(2) In the second case, the disputants belonged to the Hindu community. Shalish being the cost-effective and widely accepted form of justice available in the locality, the disputants even overlooked the fact that there is no representation from their community among the Shalishkars.

(3) The third case is purely pertaining to land dispute which involves strict adherence to technicalities and documents. The disputants chose to resolve their issue at the Shalish for the reason that, though not subject experts or professionals, the Shalishkars had knowledge about the laws of the land and could go on to identify the core issues and possible legal solutions.

(4) In the fourth case, the disputants chose the Village Courts for the very reason of speedy and just trial and swift and fair procedure.

(B) Procedures in Shalish/Village Courts

(1) In all the four cases, both parties were heard and the proceedings were held in public.

(2) In the first case, the Shalishkars often played with the emotions of the disputant parties and at times adviced them. They often interrupted and used their force, power and dominance, and even scolded and threatened the disputant husband of serious consequences if he failed to adhere to their decisions. In Shalish, the entire family is involved and social pressure is maximum exerted on the disputants in public. The entire process remained informal but decisions are often in the form of formal agreements for social accountability of the disputant.

(3) In the second case, the process was totally different. The disputants were hindus and all the Shalishkars were Muslim leaders. The wife was reluctant to disclose intimate facts in matrimony and constantly demanded for private hearing to which the Shalishkars finally adhered. Though the Shalishkars respected the wife’s sentiments regarding privacy, one of them even went to the extent of scolding her for not joining her husband. The Shalishkars had no reply when the wife questioned them on the Hindu Law and the validity of their suggestion for restitution of conjugal rights. The wife knew the process in her personal law and the Shalishkars adjourned the case without publicizing the case any further.

(4) In the third case, though all the facts were not available, the Shalishkars had a conscious mind to initiate the dispute and carefully examined their documents. They were more technical in the matter and were aware of the legal consequences. The Shalishkars suggested that a better opinion can be formed only after physical verification of land and re-examination of documents. The process was adjourned for want of complete documents.

(5) The fourth case, which was initiated in the Village Court, had its proceedings more formal in nature. Every procedure is recorded and legal formalities such as swearing of witnesses, signing of depositions etc are strictly complied with. However, within its ambit, the court also initiates an informal dispute resolution method similar to arbitration. Ultimately, the court’s verdict is imposed on the defaulter and it is binding and not appealable.

(C) Confidentiality

(1) In the first case, the entire proceedings were held in public, in the presence of the Shalishkars, friends, family, relatives and spectators. The disputants never raised any objection for the matter being heard in public, either due to their ignorance or due to their eagerness for speedy solution.

(2) However, in the second case, which was also held in public, the wife raised the question of confidentiality and refused to depose anything before the crowd. She was allowed to have a private statement with the female member of the Shalish after repeated demands.

(3) The third and fourth cases had no issues regarding confidentiality because the cases were general in nature.

(D) Enforceability of Judgments

(1) In the first case, where the Shalishkars literally imposed their decision on the disputants, and an agreement was also signed by the disputant; the parties were not legally bound by the ‘agreement’. The document only had a social sanctity which arose out of the desire for settlement and purely due to social accountability.

(2) In the second case, the wife was very well versed with her personal laws and the Shalishkars were prevented under law, to impose any decision or judgment with regard to restitution of conjugal rights.

(3) In the third case also there was no scope for any decision unless the document was proved. The Shalishkars, in the event of any decision making, could not enforce it without the backing of the adjudicatory process since the issue related to the Law governing land in Bangladesh.

(4) In the fourth case, the process was almost the same as in normal adjudication and the judgment is binding on the parties and not appealable.

(E) Power-Relation between Disputants and between Shalishkars and Disputants

(1) In the first case, the power factor of the Shalishkars was very significant from the fact that they almost thrust the husband with their decision. They literally forced the disputants to come to a compromising situation after playing on emotions. The mothers were made to shake hands, disputants were forced to bow their heads in front of their mothers, the disputant was forced by hand to sign on the ‘agreement’ and he was also threatened and warned of serious consequences if he refused to abide by the decision of the Shalishkars.

On the part of the disputants, though the husband was dominating at one point of time, the Shalishdars managed to impose their power on him and safeguard the wife’s interests. The entire focus was on resolving the dispute; whether it is forceful or not, the important fact was that the decision of the powerful Shalishkars must prevail, of course, with the ‘proper’ or ‘improper’ consent of the parties.

(2) The second case saw the dominance of the wife. She came from a more respectable family and she had thorough knowledge of the Personal laws of Hindus. Her dominance prevailed over the husband and to some extent, even over the Shalishkars. The only fact that urged the wife to adhere to the Shalish was the fear of wrath of the society.

(3) In the third case, there were actually no much power disparities since the process was more technical in nature.

(4) In the fourth case, the Village Court was dominant in imposing its decision based on facts and evidence. Among the disputants, the plaintiff, though in a dominant position with the support of evidence, she remained passive and at no point of time did she show the power factor against the defendant.

Critical Analysis

(1) In the second case, the disputant approached Shalish Kendra for settlement and the opposite party had to follow. It was evident that she was not comfortable with the Shalish proceedings, for want of confidentiality. The wife was compelled to appear for process as she was at the verge of obtaining the wrath of the society for not accepting her husband and in order to avoid any social ill-feelings. She was not satisfied with the process, but lack of any other remedies rather forced her to adhere to this process before a male-dominated authority. At the same time, she feared lack of neutrality and threat of male-domination, which was exposed as her dominance and she succeeded in getting her way out. The fact that there was no representation from her community among the Shalishkars was also a stronghold for her. She also had the support of law.

(2) In matrimonial cases, the sentiment of the family was considered on several occasions; but the researcher fails to understand why the Shalishkars were silent about the details in the ‘agreement’. Similarly, there was no attempt on the part of the Shalishkars to prevent the disputant husband from showering abuses on his wife in public. Being a male-dominated society, women are exposed to vulnerability and often their self-respect is at stake. The stigma attached to them throughout the proceedings are buried unattended.

(3) In Shalish, focus is often on resolving the dispute whether it is forceful or not. Though parties are not bound by the ‘agreement’ involved, it gives a certain kind of social accountability and responsibility to the disputants.

(4) One of the members of the Madaripur Legal Aid Association highlighted the fact that when it comes to confidentiality, often the parties never bothered much since public meetings were the order of the day and very much part of Shalish. According to him, issues relating to confidentiality are very rare. The claimant is given full confidentiality in proceedings if there is a request to that effect as we saw in the second case. However, in practice, it is very difficult for a lady to fight for this exceptional circumstance. The second case is clear evidence for the fact that it was only after her constant demand that the Shalishkars allowed private hearing. If the lady was not dominant, she would never have had the courage to make such a demand. Therefore it should be the duty of every Shalishkar to inform the disputants of matrimonial cases regarding the option for private hearing.

(5) There is no mechanism to ensure the enforceability of the decision or judgment arrived at Shalish. It is either the free will of the people or it is the strict structure of law that governs the question of enforceability. The present situation is that where people are ready to come under the law, there are no options in law to receive them. On the other hand, where there is an option, people are reluctant to follow. The system becomes so complex that there is no effective mechanism to ensure the enforceability of the judgment either in Shalish or in Village Court. For example, if in the second case, let us presume that the parties were ready to restart their conjugal life; will their personal law allow?

(6) Power imbalances between disputing parties may result in the more powerful party refusing to participate in the Shalish or dominating a hearing to the point of intimidating the less powerful party into a potentially in-equitable agreement. It may leave the weaker party in a disadvantaged position and this is of great concern in matrimonial and domestic violence cases.

(7) In judicial settings, formal procedures protect the weaker party by obliging the more powerful party to attend the court hearings, follow rules of evidence, prohibits use of violence and coercion. Such safeguards are not found in Shalish. Nothing much could be gathered from any sources on the interpersonal dynamics of a hearing and the extent to which power imbalances hinder success or place the weaker party at a disadvantage. It is even more serious an issue in public hearings.

(8) Though a vast majority of disputants are said to be satisfied with the agreements in Shalish, there are cases where they may agree to the terms and later consider them unsatisfactory. Though according to the Legal Aid Authorities, there is a follow-up, and even if statistics show that it is effective, still there can be lacunas which go un-noticed and un-attended. If at all power or use of coercion in Shalish is permissible to some extent, whether the power continues to play its role after Shalish is a matter of concern.

Conclusions

1) The researcher observes that Shalish is said to be more economical, people friendly and there is a wide social acceptance for the decisions of the Shalishkars with consent of parties. The eagerness of the parties to have an amicable settlement of disputes rather than dragging themselves into court is a reason for choice of Shalish.

2) The disputants wanted to quickly end the issue either because of their powerlessness or because of some inherent drawbacks in them which they recognize themselves. Easy access to fair dealings and justice makes the system of Shalish and Village Courts easily acceptable and successful. There is transparency of proceedings.

3) Unlike in mediation, no strict procedures were found to be followed in the entire Shalish process. It is open in nature and socially accepted. However, though procedures are informal in Shalish, the decisions are given a formal nature so that it is accepted with utmost regard by disputants.

4) The proceedings and techniques of Shalish vary from case to case, depending on parties and circumstances. For example, in the first case, the Shalishkars are seen to actively involve in dispute resolution by imposing decisions, dominating, playing with emotions, persuading and dictating terms to the disputants. In the second case, the very same Shalishkars are passive. Their imposing nature and dominating roles as seen in the first case were futile in the second case.

5) Matrimonial issues are very sensitive and utmost care should be given while handling them. Even if the parties do not demand, it is for the shalishkars to provide them opportunity to depose in private.

6) Enfoceability is a serious concern in these processes. In the first case, there was an agreement, purely social in nature, having no legal sanctity, yet enforceable at the instance of parties. In the second case, even if there was an agreement, and even if the parties were willing to abide by, yet the law would not allow it to be enforced. In the third case, again, even if there was a decision, it would be enforceable only with the help of adjudication since it involved the Laws of the Lands in Bangladesh. In the fourth case, there was law; there was a legally binding judgment; yet, the issue of enforceability remains unanswered. If the decision of the Village Court is not abided by the defendant, there is no remedy available for the plaintiff.

7) The Shalishkars use their power to impose decisions and more often it is with the consent of the parties.They play with emotions of parties and also on the basis of social acceptability and accountability. The Shalishkars are more powerful on account of their positions in society, their social background, age, support and acceptance by the general public.

8) Shalishkars interfere not to show their power, but it is rather the silent consent and will of the society at large that urges them to speak for the powerless disputants to ensure justice.

9) The powerful disputants had the ‘power’ to say no to imposed decisions, but the fear of social wrath and respect for process prevents them from doing so and they end up in a compromising situation.

10) When a dispute is compromised, it is just not between the disputants, it has an impact on the entire family and society at large and often the power disparity is forgotten and forgiven.

Recommendations

1) Awareness among people must be extended with regard to empathy extended by the process towards the weaker (vulnerable) sections.

2) There is a minority of persons who do not believe in Shalish and its success. This is mainly because they are literate and comparatively less poor and can afford to go to courts. This approach should be disarmed and trainings and campaigns should be initiated to enable the individuals to understand and appreciate the Shalish system.

3) The Shalishkars must ensure that no wrong or tricky complaints are entertained, so that the sanctity of the process remains unscratched.

4) Special focus on matrimonial cases and strict adherence to values should be given. It is advisible to confer matrimonial issues to the family members alone rather than discussing it in public. Here, consent of parties need not be a criteria because often the weaker group may not be able to express their option to the Shalishkars. It is necessary to frame a code of conduct in matrimonial cases and to strictly adhere to them.

5)With focus on the second case, it is recommended that where issues relating to communities other than Islam are concerned, there shall be at least one representative member from that community as one of the Shalishkars so that it is easier to interpret the respective laws effectively.

6) As a rule,the Shalishkars must, in every matrimonial dispute, make it clear to the disputants that they have a right to be heard in private and that it is purely dependent on the will of the parties to decide the mode of proceedings.

7) Only immediate and affected members of the family should be allowed to be part of a matrimonial dispute even if there is no urge on the side of the parties. This again depends also on the will of the affected parties.

8) The efficacy and acceptability of Shalish is in its informal nature and any initiatives to formalize or impose judgments will render the system futile and ineffectual.

9) By trying to institutionalize or formalize judgments of Shalish , we are taking this unique system away from the poor. Depriving them of this mechanism will tend to hamper the whole system and justice will remain an oasis to the poor.

10) In matrimonial cases, there should be a stringent check on power-relation between the disputants. Often, in a male-dominated society like ours, there is a tendency to favour the more powerful male disputant. This fact should be taken care of and any chance for a biased decision should be ruled out.

11) From the case studies, the researcher feels that power relation between Shalishkars and disputants vary on case to case basis and there cannot be a strict mechanism to check it. It is for the individual Shalishkars to check themselves and in turn, to hold a check on any power-disparities among disputants. If we tend to build a formal frame-work, the entire mechanism may collapse. Hence, instead of disturbing the existing system, more efforts and research can be done on the training methods of new Shalishkars to bring about a proper solution for control of power disparities.

12) The procedures adopted in Village courts need more transparency and participation from the members other than the Chairman in decision making and the influence of any other authority over the Court proceedings should be curtailed by law.

An Insight on Future

The Shalish system in Bangladesh is one of its kind which, despite all its shortcomings, is working fairly well across a variety of disputes and settings, and the beneficiaries, in general, like it. The main strengths of Shalish is its humanizing force, its treatment of the powerless with concern and dignity and the march towards a satisfactory resolution of disputes while leaving the relationships intact. In the light of the above recommendations, if appropriate improvements could be made in the process, the Shalish and Village Court systems will tend to become the most sought after systems for the poorest of the poor, thus enabling them proper and effective access to justice.

Thank You

ANNEXURE

Case No.1:

Brief facts

A girl aged about 15 years with 1½ months old child is the complainant. Her husband is the opposite party. The girl has come before the Salishkars seeking resolution of her family dispute. She made complain regarding demand of dowry against her husband. He also beats her often. According to the wife, she sold her wedding jewels worth 10,000 Tk. for the child’s welfare. The wife also stated that the husband was beating her mother when she refused to give some money to him. The wife was residing in her parental home and is willing to go back to her husband’s house provided she is treated properly and no dowry is demanded by him and also he should also take care of the child and provide for its maintenance. The husband admitted that he asked for money; but not as a dowry, instead he wanted to start a business with that money and out of the profit he was planning to return back the money to his mother-in-law. After his marriage he had separated himself from his own family and this was the reason why he had to ask the mother-in-law for money. The husband accused the wife of having illicit relationship with another person in her earlier days and doubted the legitimacy of the child.

Process Involved In Salish

After the questioning / interrogation by the Salishkars the husband admits that the child was his own and has no further disputes in this regard. Further the mother of the husband was examined and the fact that came in to light that husband was addicted to the narcotic and further the girl’s mother was also examined after ascertaining the fact the salishkars proposed to the husband to not to inflict any torture on his wife or her mother and to restore the conjugal life with the wife. At one point of time, the lady member of the Salish advised the husband of the importance of family and the responsibilities he had towards his family.

Decision of Salish

As the final settlement process, the husband was asked by the Salishkars to sign a bond to the effect that he will take full care and responsibility of his family, will not claim dowry and will not inflict any mental or physical torture to his wife or his mother-in-law. Further cautioned him he does not abide by the decision then he may have to face the wrath of the Society. After the perusal the Husband agreed to the decision and was happy to receive his child and promised to restore the conjugal life with his wife in the peaceful manner.

Case No.2:

Brief facts

In this case the compliant was the husband, who complained that his wife without showing any reasonable ground residing in her parental home. The husband tried to take her back but failed for the past 2½ years. Another complains was that his wife before leaving for her parental home she used to beat him. There was one incident when his in-laws also beat him. Both the parties were present on the hearing and the wife was asked to submit her reply to the allegation. In her facts she stated that her husband not behaves with her properly, in her custom (Hindu) marriage happens only once. But she is not willing to live with her husband any more. Because of his acts she don’t have any respect for her husband. He often uses abusive language towards her and some times even he abuses her in public. Further she pressed that certain things cannot be disclosed in public.

Process Involved In Salish

After hearing the parties the Salish board allowed for the private discussion of the wife with the female board member in a separate room and after the discussion of the women member knowing the complexity of the case and maintaining the confidentiality appointed Four trained mediators to speak to her and mediate for the possible solution and a time of seven days was granted for next hearing.

Decision of Salish

No fruitful decision came out. It is very likely that the present dispute will not be resolved.

Case No.3:

Brief facts

One person named A died leaving behind two daughters X and Y and two sons B and C. The land of A was not partitioned. X gifted her portion to B and also sold out that land to C. Both B and C possess the land jointly. Now, B claims that the whole portion of land of the daughter X belongs to him. C urges that he purchased the land. Both the parties showed many sale/purchase deed and other related records to establish their right.

Process Involved In Salish

The Salishdar examine the documents and tried to know the true facts .On one stage the Board found that some documents were missing and that’s why they adjourned the proceeding and decided that within the next date they will physically verify the status of possession by visiting the disputed land. At one moment of time a Salishker told them about the consequence of going to the Court. The Salishker also cited one example of a case where a land dispute is pending in Court for 136 years. If they move to the Court, as the property is not partitioned another dozen of heirs will come and the case will go on years after year.

Decision of Salish

Though all the facts were not available, Salish had a conscious mind to mitigate the dispute and thought fit after through examination of all the records and physical verification of disputed land which could give a batter solution of settlement of dispute. The proceeding was postponed for another one week.

Case No.4:

Brief facts/Case study of Village Court

Two ladies named 'X' and 'Z' took mortgage the land of 'C' at the cost of Tk.30000 (Tk.15000 each). Both the ladies paid the money and were enjoying the land. When the date of returning the money came, the owner of the land returned Tk.15000 to 'Z" and paid back only Tk.1000 to X. Regarding the rest Tk.14000 he said that he landed certain amount of money to the cousin (brother) of the lady X and he adjusted the remaining money with that amount, as they both belong to the same family.

The lady complained before the local Shalish that her uncle Y (as the cousin absconding) has to pay the amount which was adjusted by the land owner. During the shalish the uncle admitted that he would pay certain quantity of paddy every year until the entire of money is being paid by him. Accordingly, Y gave 5 mons. of paddy to the lady X. The dispute arose while the uncle failed to deliver the paddy in the subsequent year. The lady appeared before the Village Court and filed a case against her uncle.

Procedure of Village Court

On June 3, 2010, X came to Kendua Village Court and applied for filing a case against Y. The Chairman scrutinized the application and accepted it. On June 4, the Chairman issued summons and asked both parties to nominate their representatives on June 11. On that date both came to the Court and nominated their representatives. The Chairman formed the Village Court and fixed date for filing written objection by opponent party on June 18, 2010.

Decision of Village Court

All parties were present on June 18, 2010. The Court started to hear the parties and the witnesses with oaths. All the statements were written down. The chairman was engaged with discussions with the representatives. The Village Court ordered that the opposite party will repay the amount of Tk. 14000/ within fifteen days with two installments without any interest whatsoever. The defendant was permitted to pay the money in installments.