Are Village Courts a Viable Alternative to the Shalish System?
Following independence in 1971, the constitution of Bangladesh provided citizens the right to elect local authorities (UPs) at all sub-national administrative levels. However, governance in Bangladesh remains highly centralized, with local government continuing to be an administrative extension of the central government with limited power and resources. The tiers of local government administration in Government comprise Divisions, Districts, Upazilas and Unions at the most local level.
The formal justice sector in Bangladesh suffers from chronic problems at all stages of the justice chain that seriously limits citizens’ ability to access justice through the courts: the police are understaffed, under-equipped, ill-trained; court infrastructure is inadequate; judicial pay is poor; court procedures are slow, complex and confusing leading to cases being delayed, often by years and a consequent backlog of 34 lakh cases. Moreover, legal aid is limited; corruption and malpractice are widely reported; prisons are congested.
Faced with these problems, most Bangladeshis simply do not report minor crimes to the police and instead they rely on traditional forms of justice, such as the traditional shalish, which are interventions by village elders or other local elites such as members of UPs to resolve civil and domestic disputes. As persons of status and authority within the community, Union Parishad (UP) members are often approached to undertake mediation of disputes, primarily shalish. While traditional shalish has a part to play in dispute resolution, it is not legally regulated, and can have no criminal jurisdiction. Concerns exist around their impartiality, bias towards richer and more powerful members of the society, indicating an elite capture. Women face particular social and socio-economic barriers to justice that exclude them from economic activity, especially in more conservative communities, and are often discouraged from reporting crimes against them or seeking civil justice lest they bring shame or dishonor on their families. Moreover, escalating concerns have been voiced in recent years that the shalish system too has now become expensive and corrupted by the participation of local thugs.
The government introduced the Village Court Ordinance in 1976, later replaced by the Village Court Act 2006, establishing a Village Court in each Union to deal with a wide range of minor criminal and civil disputes. Village Courts employ an easily understood and simple procedure based largely on the shalish but modified to address some of the inequalities in the traditional form and with a strong restorative justice approach.
Village Courts may be regarded as an alternative way of providing access to justice, in that they have the potential to strengthen local authorities, make them more responsive to local needs, function as a bridge between informal and formal justice institutions and provide a level of affordable, quick and accessible justice for all residents of a Union, particularly the poor, women and other vulnerable groups.
This paper tries to study the prospects and challenges of Village Courts and analyze if it is effective tool to ensure local governance. It suggests recommendations to establish it as an alternative and reliable way of providing access to justice, as opposed to the shalish system, which is heavily characterized by elite capture.
Access to justice does not only encompass the ability to present a grievance in front of a court, just also emphasizes on an effective and efficient approach such that your right is translated into a fair hearing (Anderson 2003). Access to justice is ensured in rural areas through formal legal systems or informal systems such shalish or quasi-formal systems such as village courts, however, rural power structure has a pivotal role to play in this case. The rural power structure has seen emblematic shifts in the last two decades, land ownership alone is not considered the sole determinant of rural power anymore (Lewis 1991; Wood 1999). Bode’s (2002) study reveals the changing power composition, wherein he claims that it is party politics that governs the power structure now at union level. The level of influence a union chairman can hold over the local MP can be determined by his party affiliation, which bears strong repercussion on his ability to mobilize available resources into the union from the center.
Although traditional Shalish had been popularly regarded as the most effective way of seeking and dispensing justice, in recent times, the significance and effective the shalish system has witnessed a decline because of biasness, corruption, gender discrimination, lack of legal awareness, influence of money and power, changing social norms (Jahan, n.d.). The reasons for the lowered status of shalish is closely linked to the concept of elite-capture. Bode and Howes (2002: xiii) mentions that “Like their formal counterparts, Shalish are characterized by a range of deficiencies.” The bench members of the shalish, who largely lack awareness of the law, and may give punitive and inhumane punishment as a verdict. The members are usually rich, influential male, and normally decree in favor of their peers. The traditional shalish draws heavily on the prevailing social structure, which serves as an impediment to guarantee justice for the poor because of its unequal power structure. In traditional shalish, those in the upper strata of the society tend to be in a position to exercise their economic influence and justice may not prevail if the confronting side is poor. The shalish members also tend to have an inclination of helping the rural elites or the rich, in hopes of reaping personal benefits in return. In her studies, Siddiqi, D (2004) reiterated that, money and muscle are pivotal in influencing the outcomes of Shalish rulings, questioning its integrity.
However, studies also point to presence of elite capture in village courts. It was revealed that party associations of the chairmen and members sometimes came in the way of ensuring justice. The chairman and members, driven by the fear of losing votes in the next election, sometimes are hesitant to take appropriate and strict action against the influential person for (Hossain, 2012). Most of Village Court official believed that the Village Court was impacted by external influences i.e. local political figures, community influentials, the rural elites and other influential individuals in the village (Harrold, 2007).
Upon studying the status and prospects of village court, few findings were unearthed. One of them was that the rural people lacked unawareness of the Village Court. Some previous studies conducted show that the people did not have much awareness about the functional aspects of Village Court. Because of this, the founding purpose of Village Court remains out off remains unsuccessful. Lack of financial logistical and infrastructure of resources and insufficient human resource are also issues of concern. The village courts suffer from poor performance characterized by lack of manpower to regulate their functions. For proper functioning of any institution or organization, logistic support is also imperative. Village courts are largely under-capacitated which hindered fast service delivery and had key infrastructure such as trial room computer separate building missing.
It was also observed that the chairman heavily influence the court decision and body members. Because chairmen were elected with party nominations, they had an inherent inclination towards party men and nonsupport to non-party men. The chairmen were are also usually seen to be assertive and disrespectful towards the other members. The village courts suffered from a lack of training and it was found that most of the officials lack proper training. It was startling to find that many chairmen and members lack the basic knowledge on rules and regulations of Village Court, which raises serious concern about its effectiveness.
Corruption is a major obstacle that cripples the growth and development of any organization or institution. Village Courts in Bangladesh are also rife with corruption, characterized by the power play of the Chairman and members deliberating decisions in favour of their person of interests. This also reflects the presence of elite capture in the Village Court system. One of the major overarching issues of Village Court that has been acknowledged in many discourses was the absence of a proper monitoring and accountability mechanism. This made the Village courts less reliable since there is no institutionalized monitoring system for monitoring the action of the judges. The buy-in of local political leaders was also one of its shortcomings. Section 19A of Local Government Act 2019, which is a newly added clause from the 2015 amendment, mandates that candidates are to be nominated from a political party or contest as an independent candidate. This poses a dilemma because an executive officer with an inherently political agenda should not be considered suitable for carrying out the role of a judge. This made way for local leaders of government party to influence the arbitration through their elected party men. Since most of the local UP representative is nominated or elected by political parties, elected party members do not challenge their party person. Studies also exposed that will village codes are not gender-inclusive. This was reflected in the startling low percentage of cases filed by the women, compared to men. There are instances of cases by women being ignored because of the sensitive nature of the cases. Although, to mitigate this matter and ensure the gender-inclusive environment, amendment in 2013 mandated that at least one woman will have to be a member of the village Court.
Village courts don’t have the jurisdiction to deal with family issues since such issues are usually handled by the Shalish. Most Village Court officials claim that it might be useful to increase the monetary limit of the Village Court jurisdiction, which is currently very low and impacts operations. The Village Court also has some bureaucratic lackings. The officials are overloaded with cases and don’t have a solid mechanism in place. Documentation is still manual which creates a lot of backlog.
Although village courts were meant to be a remedy for the corrupt shalish system, it was overwhelmed with elite-capture to some degree as well. However, the power dynamics seems to have shifted from just the rural elite to the those holding political prowess.
Although village courts were established to enhance access to justice for the poor and emerge as an alternative to the shalish system, previous study revealed that due to lack of awareness among the rural people, inadequate orientation of the chairman and members of UP, it could not position itself well. It was not as well regarded among the concerned authorities. Constant monitoring, coordination and awareness generation of the Village Courtis needed by allocating more funds and resources. Proper supervision mechanism should be particularly developed to eradicate abuse of power and dismantle elite-capture by developing a sense of ownership in the village courts officials. Adequate trainings should be given to the chairman and members to capacitate them about the rules and regulations of village courts. Information dissemination and awareness campaigns need to be organized to popularize village courts. Handling family disputes may be merged into the responsibilities of the Village Court with special provision for protection of privacy during personal issue resolution. This will make the Village Court more robust and streamline the institutional setup such that there is only one dispute resolution body within each up. Administrative support needs to be strengthened and the documentation processed needs to be optimized through a review and overhaul.
If these bottlenecks are worked on, village courts may be established as a robust institution, free from the shackles of elite-capture and provide justice to all.
