Alternative Dispute Resolution (ADR)

◙ Introduction:-

Alternative" dispute resolution is usually considered to be alternative to litigation. It also can be used as a colloquialism for allowing a dispute to drop or as an alternative to violence. In recent years there has been more discussion about taking a systems approach in order to offer different kinds of options to people who are in conflict, and to foster "appropriate" dispute resolution.

A non-governmental organization (NGO) is a legally constituted organization created by natural or legal persons that operates independently from any government. In the cases in which NGOs are funded totally or partially by governments, the NGO maintains its non-governmental status by excluding government representatives from membership in the organization. The term "non-governmental organization" has no generally agreed legal definition. In many jurisdictions, these types of organization are called "civil society organizations" or referred to by other names. Bangladesh has been perhaps the most important hearth on the globe for non-governmental organizations. Some estimates place the number of NGOs in Bangladesh in excess of 20,000^.

Actually ADR is a process of resolving disputes outside the ordinary judicial process & it is well known that, the process of ADR is mainly regulated by the non-governmental organization (NGO). So the role of NGOs in Implementing ADR mechanism in Bangladesh is to be marked.

◙ Meaning of ADR:-

Alternative dispute resolution (ADR) includes dispute resolution processes and techniques that act as a means for disagreeing parties to come to an agreement short of litigation outside the court. Despite historic resistance to ADR by many popular parties and their advocates, ADR has gained widespread acceptance among both the general public and the legal profession in recent years.

      The Civil Procedure Code (Amendment) Act, 2002 has been enacted to introduce Alternative Dispute Resolution (ADR) system for early and consensual disposal of civil suits.

So ADR is Formal methods of settling disputes other than by court action, collectively referred to as alternative dispute resolution or ADR.

◙ Modes of ADR:-

Alternative Dispute Resolution (ADR) is the name given to the process where parties in a dispute come to a compromise (or settle their dispute) without going to court. The main reason people use ADR is to save the expense of using the courts and solicitors. 

There are the following main forms of Alternative Dispute Resolution.

Mediation:-This is where a neutral person (the mediator) helps the parties to reach a compromise.  The job of the mediator is to consult with each party and see how much common ground there is between them.  S/he should act as a facilitator, taking offers between the parties.  The mediator doesn't offer an opinion.  Mediation is most suitable where there is some chance that the parties will co-operate.  Mediation is not legally binding on the parties.

Arbitration:-Arbitration is the most formal of the methods used to settle disputes without using the courts.  Arbitration is where the parties with a disagreement pass their dispute to a third party, who will make a judgment on their behalf.  This judgment will then be legally binding on the parties. 

  

The relevant law on arbitration can be found in the Arbitration Act 2001 

Negotiation:-This is the simplest form of ADR.  Where two people have a dispute they can negotiate a solution themselves.  The advantages to the parties involved are that it is completely private and it's fast and cheap. 

  

Where parties to a dispute cannot settle it themselves they may instruct solicitors who will negotiate on their behalf.  Even when negotiation fails at these early stages of a dispute and court proceedings start solicitors will usually continue to negotiate on their client's behalf.  This results in many cases being settled out of court.

Conciliation:-This is similar to mediation where a neutral third party helps the parties to resolve their dispute; however, the conciliator plays a more active role in the process.  S/he will be expected to suggest ways in which a compromise could be reached.  Conciliation is not legally binding on the parties.

Med-Arb:-As its name suggests mediation-arbitration, or med-arb, combines mediation and arbitration. First, a mediator tries to bring the parties closer together and help them reach their own agreement. If the parties cannot compromise, they proceed to arbitration—before that same third party or before a different arbitrator—for a final and binding decision.

Minitrial:-The minitrial, a development in ADR, is finding its greatest use in resolving large-scale disputes involving complex questions of mixed law and fact, such as Product Liability, massive construction, and antitrust cases. In a mini-trial, each party presents its case as in a regular trial, but with the notable difference that the case is "tried" by the parties themselves, and the presentations are dramatically abbreviated.

In a minitrial, lawyers and experts present a condensed version of the case to top management of both parties. Often, a neutral adviser—sometimes an expert in the subject area—sits with management and conducts the hearing. After these presentations, top management representatives—by now more aware of the strengths and weaknesses of each side—try to negotiate a resolution of the problem. If they are unable to do so, they often ask for the neutral adviser's best guess as to the probable outcome of the case. They then resume negotiations.

The key to the success of this approach is the presence of both sides' top officials and the exchange of information that takes place during the minitrial. Too often, prelitigation work has insulated top management from the true strengths and weaknesses of their cases. Mini-trial presentations allow them to see the dispute as it would appear to an outsider and set the stage for a cooperative settlement.

Early Neutral Evaluation:-An early neutral evaluation (ENE) is used when one or both parties to a dispute seek the advice of an experienced individual, usually an attorney, concerning the strength of their cases. An objective evaluation by a knowledgeable outsider can sometimes move parties away from unrealistic positions, or at least provide them with more insight into their cases' strengths and weaknesses. Of course, the success of this technique depends upon the parties' faith in the fairness and objectivity of the neutral third-party, and their willingness to compromise

Settlement conference-A settlement conference is a meeting between opposing sides of a lawsuit at which the parties attempt to reach a mutually agreeable resolution of their dispute without having to proceed to a trial. Such a conference may be initiated through either party, usually by the conveyance of a settlement offer; or it may be ordered by the court as a precedent (preliminary step) to holding a trial. Each party, the plaintiff and the defendant, is usually represented at the settlement conference by their own Counsel or attorney.                                                                                                                                                                                                                                               

Expert Determination:-Expert determination is a historically accepted form of dispute resolution invoked when there isn't a formulated dispute in which the parties have defined positions that need to be subjected to arbitration, but rather both parties are in agreement that there is a need for an evaluation.

The practice itself is millennia old and well established where complex legal institutions either have not developed, or are unavailable, such as tribal societies and criminal organizations.

Family group conference:-A meeting between members of a family and members of their extended related group. At this meeting (or often a series of meetings) the family becomes involved in learning skills for interaction and in making a plan to stop the abuse or other ill-treatment between its members.

Neutral fact-finding: a process where a neutral third party, selected either by the disputing parties or by the court, investigates an issue and reports or testifies in court. The neutral fact-finding process is particularly useful for resolving complex scientific and factual disputes.

Case evaluation: a non-binding process in which parties present the facts and the issues to a neutral case evaluator who advises the parties on the strengths and weaknesses of their respective positions, and assesses how the dispute is likely to be decided by a jury or other adjudicator.

◙ Advantages of Alternative Dispute Resolution:-

ü     Speed - Settling a dispute using ADR is usually much quicker than using the court system.

ü     Expertise - A specialist from within a particular trade or industry is able to suggest a reasonable solution which will be acceptable to the parties involved.  A judge is unlikely to have specialist knowledge, other then in the law.

ü     Privacy - ADR is conducted in private, therefore avoiding publicity from the media.  The public are also unable to attend.

ü     Parties may be able to remain on good terms - The aim of ADR is to find a compromise solution which is acceptable to both parties.  Court proceedings create a winner and a loser.  Using ADR to settle a dispute means businesses can remain on good terms and continue to trade with each other once their dispute is resolved.

ü     Costs to the Parties - All forms of ADR are far cheaper than taking a case to court.

ü     Costs to the State - Every case resolved using ADR saves the Government money.

ü     Saving of Court Time - Every case solved through ADR stops the courts being over burdened with cases.

◙ Disadvantages of Alternative Dispute Resolution:-

ü     Unequal Bargaining Power - In certain situations one side is able to dominate the other, for example, employment and divorce cases, making the courts a better option for a weak party.

ü     Lack of Legal Expertise - Where a dispute involves difficult legal points a mediator or arbitrator is unlikely to have the same legal expertise and knowledge as a judge.

ü     No System of Precedent - It isn't easy to predict the outcome of a dispute decided through ADR as there is no system of precedent.

ü     Enforceability - Most forms of ADR are not legally binding, making any award difficult to enforce.

ü     A Court action may still be required - If using ADR fails to resolve the parties' dispute, court action may still be needed.  This adds to the costs and delays compared to taking a dispute direct to the courts in the first place.

◙ Development & Popularity of ADR in Bangladesh:-

 The Civil Procedure Code (Amendment) Act, 2002 has been enacted to introduce Alternative Dispute Resolution (ADR) system for early and consensual disposal of civil suits. Section 89A and 89B have been inserted to allow parties to settle their disputes in suits, through mediation or arbitration. In the mediation procedure, the court may take initiative to settle the dispute in the suit by itself or by making reference to independent mediators. Under section 89B parties will be allowed to withdraw pending suits and have those settled through arbitration. The provisions have been made effective from 1st July 2003.

      The Ministry of Law has undertaken different measures to motivate and sensitize judges, lawyers and the litigant public about the merits and advantages of the ADR. Workshops, seminars, training programs have been organized for judges, lawyers and court support staff in the divisional headquarters and selective districts. A widely acclaimed documentary film titled "Settlement of Disputes through Mediation" has been made and shown to the participants and the stakeholders all over the country.

      ADR system is gaining popularity. This procedure will help to reduce the huge backlogs of civil cases in courts. Public confidence in the judiciary will thereby increase. Access to justice will be expanded. The provisions will also help develop a new culture of consensual settlement of disputes doing away with the existing adversarial procedure. It will help protect and preserve cohesion and fraternity in society.

ADR has been both; increasingly used alongside, and integrated formally, into legal systems internationally in order to capitalize on the typical advantages of ADR over litigation:

Ø     Suitability for multi-party disputes;

Ø     Flexibility of procedure - the process is determined and controlled by the parties the dispute;

Ø     Less complexity ("less is more");

Ø     Parties choice of neutral third party (and therefore expertise in area of dispute) to direct negotiations/adjudicate;

Ø      Likelihood and speed of settlements;

Ø     Practical solutions tailored to parties’ interests and needs (not rights and wants, as they may perceive them);

Ø     Durability of agreements;

Ø     Confidentiality; and,

Ø    The preservation of relationships.

◙ ADR mechanism in existing Laws of Bangladesh:-

In Civil Suits:

Ø     The Civil Procedure Code,1908

1.     Mediation u/s 89A

2.     Arbitration u/s 89B.

Ø     Muslim Family Laws Ordinance,1961

3.     Polygamy u/s 6

4.     Divorce u/s 7

5.     Maintenance u/s 9

Ø     Family Court Ordinance,1985

1.     Pre-trial Proceeding u/s 10

2.     Post-trial Proceeding u/s 13

Ø     Artha Rin Adalat Ain, 2003

1.     Settlement Conference u/s 21

2.     Mediation u/s 22

Ø     Gram Adalat Ain, 2006 [Totally]

Ø     The Conciliation of Disputes (Municipal) Board Act, 2004 [Totally]

Ø     The Arbitration Act, 2001 [Totally]

Ø     The Labor Code, 2006

1.     Negotiation u/s 210(1,2,4)

2.     Conciliation u/s 210(6)

3.     Arbitration u/s 210(16)

In Criminal Cases:

Ø     The Criminal Procedure Code,1898

1.     Compounding offences u/s 345.

◙ ADR & NGO:-

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.

◙ Role & Types of NGO in ADR:-

There are the following types of NGOs are contributing their service in order to solving the disputes outside the court:-

ü     United Nations Information Centre
United Nations Information Centre, Dhaka, Bangladesh

ü     United Nations in Bangladesh

The UN Country Team in Bangladesh comprises all UN agencies based in Dhaka including: UNDP, UNICEF, WFP, UNFPA, UNESCO, WHO, ILO and including the wider UN family, the World Bank, IOM and IMF.

ü     Bangladeshi-American Foundation, Inc.

The Foundation is a membership-based, non-profit and mission-driven organization without any political affiliation in the US or in Bangladesh and with respect for both transparency and confidentiality.

ü     Bangladesh Centre for Advanced Studies (BCAS)

An independent, non-profit, non-government, policy, research, and implementation institute working on sustainable development (SD) at local, national, regional and global levels.

ü     Care Programs Bangladesh

CARE works with poor communities in more than 70 countries around the world to find lasting solutions to poverty.

ü     Rehabilitation of the Paralyzed (CRP)

NGO providing services for the disabled, Special Needs School, disability awareness and prevention, training for physiotherapists and occupational therapists.

ü     Sachatan Shahajjo Sangstha (SSS)

The Organization was established to achieve a mandate of establishment of a society of economically self reliant, environmentally sound, socially peaceful and democratically empowered.

ü     Grameen

Provides credit to the poorest of the poor in rural Bangladesh without any collateral

ü     Green Step

This group of local elite and innovative youth who were involved in various activities for social development. Green Step is a senior guided and youth driven voluntary organization.

ü     The Bangladesh Development Research Center (BDRC)

The Bangladesh Development Research Center (BDRC) is a nonprofit research organization, incorporated and based in the United States of America.

ü     Aungkur
Aungkur Palli Unnayan Kendra (APUK), a centre for Rural Development is a Bangladeshi, local, non- political, non-profit organizatio n. It was established in 1989. Operating under Madaripur district.

ü     Noakhali Rural Devlopment Society

Noakhali Rural Development Society - NRDS is a non-profit organization, working in the greater Noakhali region of southeastern coastal part of Bangladesh.

ü     Grameen Tele Center

Grameen Cyber Society is an NGO which focuses on "education" and "rural community development". GCS plans to serve the rural communities by helping them to identify and use their potential to significantly improve their socio-economic

ü     Global Network for the Prevention of Torture (GNPT)

Promote a torture-free world by creating an effective global network for the prevention of torture. Create public awareness regarding torture-related issues. Etc.

ü     Unnayan Ngo

The Innovators/ Unnayan Onneshan, an independent NGO registered. The Innovators works in the search for solutions to endemic poverty, injustice, gender inequality and environmental degradation at the local, national and global levels.

ü     Madaripur Legal Aid Association.

     Community-based mediation, women's access to justice, women's mediation   .

            training project for village shalish processes

ü     Aparajeyo Bangladesh (AB). AB is a national child rights organization founded in 1976 to work with children living in and around the slums of the Dhaka city. In 1989, it started to serve children living on streets. AB also promotes and protects rights of other socially excluded children.

ü     Bangladesh Human Rights Network. BHRN is an independent network of media professionals and activists working to develop local criteria for human rights practices. It advocates democratic principles including grassroots public participation, and addresses social inequalities at national and international levels. Site includes a list of human rights organizations in Bangladesh.

ü     Bangladesh National Women Lawyers Association. Women's economic and legal rights education, reports on trafficking of women and children.

ü     Bangladesh Manabadhikar Bastabayan Shangstha (BMBS). Bangladesh Society for the Enforcement of Human Rights (BSEHR),

ü     Bangladesh Rehabilitation Centre for Trauma Victims (BRCT). This organization provides relief and legal assistance to torture survivors and their families, as well as conducting information workshops and advocacy for prevention of torture.

ü     Bangladesh Retired Police Officers Welfare Association. This organization's mandate is to provide assistance to retired police officers and their families. However, the BRPOWA has a juvenile justice program in which they monitor and advocate for more appropriate placement of children they find in adult jails. They also conduct education for police in child rights.

ü     Centre for Women and Children Studies. CWCS conducts training for police in gender and child rights and sensitivity. 92, New Eskaton Road, Dhaka-1000, Bangladesh, 880-2-9351126.

ü     Consumers Association of Bangladesh (CAB). CAB conducts consumer education, advocates for consumer protection, and conducts some consumer protection advocacy. Telephone (880-2) 9562858, e-mail cab@spaninn.com.

ü     The Coordinating Council for Human Rights in Bangladesh (Bangladesh Manobadhikar Samonnoy Parishad). CCHRB is a non-governmental organisation which was set up in 1986 to coordinate information and activities of human rights organisations and development NGOs in Bangladesh. It currently represents 200 human rights organizations. 4/3 Block - E, Zakir Hossain Road, Lalmatia, Dhaka-1207. Fax.(880-2081-30-95 (Attn. BMSP/CCHRB)

ü     Federation of Bangladesh Chambers of Commerce and Industry. The FBCCI is the apex body for chambers of commerce in Bangladesh. The Dhaka Chamber of Commerce and Industry conducts services for several thousand members, mainly small and medium sized businesses. The DCCI conducts training for business owners and conducts policy advocacy, including lobbying for consumer protection legislation.

ü     Human Rights Congress for Bangladesh Minorities (HRCBM). A worldwide movement for protection of human rights of people in Bangladesh, particularly minorities in Bangladesh. HRCBM works with victims and activists to prevent discrimination, to uphold political freedom, to protect people from inhumane conduct, and to bring offenders to justice. HRCBM publishes The Human Rights Tribune. HRCBM-Dhaka, 41/O Azimpur Estate,(3rd Floor), Yathimkhana Lane, Dhaka, Bangladesh; Telephone: 0171-172468; Fax: 088-02-9669126.

ü     Madaripur Legal Aid Association. MLAA conducts community-based mediation and is concerned with women's access to justice. MLAA has a women's mediation training project.

ü     Media Watch. 4F Eastern housing, 4 circuits house Road, Dhaka-1000, Bangladesh. Mailing Address: GPO Box 3521, Ramna, Dhaka, Bangladesh, Tel: +880 2 8318608/+88 0 1 8223309, Fax: +880 2 956 7070.

ü     Naripokkho. This activist organization conducts research, policy advocacy on women's rights, including health and reproductive rights, violence and women's human rights, gender and development and women in the media. The emphasis is on reducing violence against women. They provide support to women who have been victims of violence including support during investigation and court proceedings. Naripokkho is also involved with the Campaign against Acid Violence which started in Bangladesh in 1995.

ü     Families for Children

 It is a private, non profit, nonsectarian agency operating homes that care for    hundreds of destitute children and women in India and Bangladesh.

ü     Center for Policy Dialogue.

CPD's mission is to stimulate public debate, generate knowledge and influence policy through multistakeholder participatory processes. CPD has conducted policy dialogue on land administration issues. Land disputes are a large sources of civil and criminal cases in Bangladesh.

ü     International Development Enterprises

ü     International Voluntary Services (IVS)

ü     Juba Jibon Unnayan Samity

ü     Koinonia

ü     Manabik Shahajya Sangssta (MSS)

ü     International Urban Planning Organization (IUPO)

ü     Marie Stopes Clinic Society (MSCS)

ü     Nari Maitree (NM)

ü     Nari Unnayan Samity (NMS)

ü     Nayan Action Foundation (NAF)

ü     Action aid Bangladesh

ü     NGO Forum For Drinking Water Supply & Sanitation

ü     Organization For Mothers And Infants (OMI)

ü     Oxfam

ü     Caritas-Bangladesh

ü     Centre for mass education & science(CMES)

ü     Enfant Du Monde (EDM)

ü     Heed Bangladesh

ü     Helen killer International

ü     Proshika

ü     Intermediate Technology Development Group (ITDG)

ü     Bangladesh Inter-religious Council for Peace and Justice (BICPAJ).

◙ BRAC ◙

Vision: A world free from all forms of exploitation and discrimination where everyone has the opportunity to realize their potential.

Mission:Our mission is to empower people and communities in situations of poverty, illiteracy, disease and social injustice. Our interventions aim to achieve large scale, positive changes through economic and social programmes that enable women and men to realise their potential.

Human Rights & Legal Services:-

• Human Rights & Legal Education Classes Held=149,415
• Graduates=3,460,875
• Community Leaders' Workshop Held=12,620
• Complaints Received=124,438
• Complaints Resolved by ADR=65,214
• Cases sent to Court=19,492
• Judgement Received in Favour=8,816
• Human Rights & Legal Education Classes Held=149,415

◙ Ain o Shalish Kendro  ◙

About ASK: Ain o Salish Kendra (ASK) is a national legal aid and human rights organization, established in 1986. Initially focused on providing free legal services to the disenfranchised in Dhaka City, its aims and activities have developed over twenty years to encompass investigation, advocacy, media campaigning, documentation, training and action research in addition to its core activities of legal services (including legal aid, mediation and public interest litigation).

Goal: To establish the rule of law based on the principles of equality, democracy, human rights, justice and gender equity.

Strategies: ASK seeks to promote and protect human rights through 17 Units which promote human rights awareness; offer legal aid for mediation, litigation and public interest litigation; investigate and document human rights violations; conduct research into the human rights situation and advocate for law and policy reform to protect human rights criteria; and disseminate information through the media and its own publications. It also offers counseling for victims of human rights violations.

Approach: ASK has no political affiliations and takes a non-partisan approach to its activities, which aim to contribute to establishing the rule of law based on principles of democracy, human rights, justice and equality.

Resources: While primarily supported with funds from several donor organizations, ASK also raises its own funds through training, sale of its publications and services, as well as through replication of its programmes by or through partner non-government organizations and government agencies.

Regional Activities: ASK is an active member of several regional or international human rights fora, in particular the Asian Forum for Human Rights and Development (Forum-Asia), the Asia Pacific Forum for Women, Law and Development (APWLD), the International Women’s Rights Action Watch-Asia Pacific (IWRAW-AP), the South Asia Forum for Human Rights (SAFHR), and Women Living under Muslim Laws (WLUML)

International Activities: ASK has special consultative status with the United Nations Economic and Social Council (UNECOSOC) (since July 31, 1998) and engages in advocacy with UN agencies, treaty monitoring bodies, and special procedures, on issues of concern.

Legal Status: ASK was registered as a society with the Registrar of Joint Stock Companies and Firms, under the Societies Registration Act 1860 on September 20, 1986. It also registered with the NGO Affairs Bureau, under the Foreign Donations (Voluntary Contributions) Regulation Ordinance, 1978 on June 28, 1993. Europe Aid Potential Applicants Database Online Registration(PANDOR) ID BD-2008-DNJ-0201660464.

Legal Aid: ASK provides legal services to the vulnerable and marginalised, in particular women, children and workers, as well victims of violence by state and non-state agents. It provides legal advice, undertakes mediation and litigation and supplementary support services, such as emergency temporary shelter and psycho-social help. It also responds to incidents of abuse, for example by taking steps to rescue or release victims and sending urgent communications to the concerned authorities to take prompt actions for redress. 

ASK provides legal services through the Litigation Unit, the Rapid Response and Mediation Unit and the Outreach Unit, each being staffed by lawyers, field workers and their assistants.

Legal Advice: ASK provides free legal advice to any person who approaches ASK, either in person at its main Purana Paltan office or in legal clinics located across Dhaka city, or by phone or email. If the person falls within the criteria for receiving legal representation, ASK proceeds to provide further support, and alternatively advises that a lawyer be engaged by the person concerned.  ASK fieldworkers accompany clients to police stations, the Marriage Registrar’s (Kazi’s) offices and the courts, as and when needed.

ASK also intervenes in certain cases on its own based on information published in the newspapers or received from different institutions.

Rapid Response: In emergency cases ASK’s Rapid Response mechanism enables it to respond to human rights violations reported in the media or referred by individuals and organizations through interventions with the concerned authorities.

Mediation: ASK emphasizes dispute resolution through mediation in all appropriate cases, prior to litigation.  After registering the client’s complaint, it notifies the other party in writing of the complaint and calls them for mediation. On receiving a response, it arranges one or more mediation hearings at which the staff lawyer, the complainant and the opposite party discuss the dispute. If no response is received to the written notice, the ASK field worker will make a personal visit to the other party to explain the matter and request them to take part in the mediation.  Where a settlement is reached, ASK continues to liaise with the client for six months to monitor and follow up on the settlement.

Litigation: In cases amenable to mediation, if no settlement is reached and the mediation fails, ASK may provide legal representation to the client to seek a remedy through litigation in the court. 

  In cases which cannot be mediated, for example complaints of violence, including rape, murder, possession of arms and explosives, and cases involving infringement of fundamental rights, ASK may provide legal advice and representation for remedies to be sought through litigation.

Outreach: Through the Outreach Program, ASK currently provides legal aid beyond Dhaka to several districts (Borishal, Chittagong and Hobigonj) in collaboration with partner NGOs and through panel lawyers who attend legal clinics in urban areas. The Outreach programme also undertakes

o      Trainings for panel lawyers on legal and human rights issues and on human rights lawyering

o      Workshops with local Bar Association members on legal aid

o      Workshops with members of the local administration including police officials, district commissioners, judges, magistrates, public prosecutors, journalists on local human rights issues and on legal matters.

Support Services: ASK provides its clients with emergency temporary shelter, medical, economic, and psychological support to supplement its legal services. These include 

Temporary Shelter: ASK runs a temporary shelter called the Halfway Home, which can house a maximum of ten women and a few children. Women victims/survivors of violence with serious safety and security concerns are provided temporary shelter at the halfway home for a maximum period of six months, and for more extended periods through referrals to other shelter homes.

The Home provides primary health care, basic literacy and vocational training and recreational facilities and support in identifying and pursuing employment opportunities.
        

Psycho-social Counselling: Introduced in 2003, the Psycho-Social Help Programme addresses the needs of victims/survivors of violence, abuse and human rights violations for psycho-social support. ASK’s counselors attend to clients referred by the Legal Aid Unit, in particular those who have suffered sexual, physical or psychological abuse. They also organize orientation training on psychosocial counseling for NGO activists, human rights defenders, and health care professionals among others. ASK has developed a code of ethics for counseling.

Legal Clinics and Client Workshops: ASK fieldworkers organize seven weekly legal clinics across Dhaka City in collaboration with local NGOs at which staff lawyers from the main office attend to advice clients, and where required, make referrals to the main office for mediation or litigation. Regular Client Workshops are held in the clinics to inform clients about the progress of their cases and to enable them to discuss any obstacles faced.

Judgments:

Faustina Pereira vs State

Keeping of any prisoner in jail after he served out the sentence amounts to violation of Human Rights and Fundamental Rights guaranteed by the Constitution. ………………

Foreign Prisoners’ Case

Category: Criminal Revision

Forum: High Court Division of the Supreme Court of Bangladesh, (Criminal Revisional Jurisdiction)

Md. Hamidul Haque J
Nazmun Ara Sultana J

Date of Judgment
May 22nd, 2001   

Relevant Laws

o      Constitution of Bangladesh, 1972, Article 32;

o      Jail Code (IX of 1894), Rules 78, 570 to 578

Judgement

Md. Hamidul Haque J

This suo-motu Rule was issued on the basis of a letter addressed to Hon’ble Chief Justice by Dr. Faustina Pereira, Advocate of Supreme Court and also Coordinator of Advocacy Ain o Salish Kendra. The Hon’ble Chief Justice directed the Registrar to place the matter before this bench for taking appropriate action.

2. In the above letter the attention of Hon’ble Chief Justice was drawn to the fact that 29 prisoners of different countries were languishing in the jail for about 5(five) years even after serving out their sentence. The Rule as issued upon the relevant Ministry of the Government and we have heard the learned Deputy Attorney General and the learned Advocate on behalf of the petitioner Md. Nizamul Haque and also Dr. Faustina Pereira. Today we also heard Mr. Armand Roussclot, Regional Representative of International Organisation for Migration who also appeared before us and informed us about the activities of the Organisation after this Rule was issued.

3. We have received the Memo bearing No. 4288 dated 7-5-2001 from Md. Jahangir, Senior Jail Superintendent, Central Jail, Dhaka. This memo contains the report as to the steps taken by the jail authority for facilitating release of the prisoners in question. It appears that as regards the prisoners of India and Pakistan the authority contacted High Commissions of those two countries. It further appears from the memo that except the prisoner at Sl. No. 14, Miss Dibba Bharati, the Indian High Commission is verifying the fact whether the 13(thirteen) Indian Prisoners are actually citizens of India. It further appears that the Ministry of Home Affairs, also made contact with the Tanzanian Embassy regarding repatriation of 2(two) Tanzanian Prisoners. As regards 10(ten) prisoners of Myanmar, Government of Bangladesh has not yet taken any step and, as such, no contact was made with the Embassy of Myanmar regarding release of those 10 citizens of that country. Lastly, from the report we have found that one of the prisoners of Myanmar at Sl. No. 7, Md. Safi, died at Bangbandhu Sheikh Mujibur Rahman Medical University Hospital on 5-5-2001.

4. On perusal of list of the foreign prisoners who are now at Dhaka Central Jail we find that some of the prisoners served out their sentence in the middle of 1995. Some in 1996 and others in 1999. So, we find that some of the prisoners are in jail for a long time even after serving out their sentence. This pitiable fact was not brought to the notice of this court earlier by any authority and as such, no action could be taken. Even it was not known to this court that so many prisoners were languishing in jail after serving out their sentences Dr. Faustina Pereira, Coordinator, Advocacy Unit Ain o Salish Kendra deserves thanks for bringing this fact to the notice of the Hon’ble Chief Justice.

5. At the time of hearing however, we have learnt from the submission of learned Deputy Attorney General Mr. M Faruque that the Government of Bangladesh is also anxious to release these prisoners but due to some formalities the prisoners could not be released. As we have noticed earlier that some of the prisoners already are in jail for more than 6 years after serving out the sentences, it should have been proper for the jail authority and also Ministry of Home Affairs to take appropriate steps for their release at the earliest possible time. But it is unfortunate that no such steps were taken. We are afraid if timely steps are not taken in future more prisoners will meet the same fate. It is also learnt from the letter of the Inspector General of Prisons, Bangladesh dated 12-4-2001 that about 822 more foreign prisoners are waiting for release after serving out their sentence. The learned Advocate for the Ain o Salish Kendra, Md. Nizamul Haque, in this connection has invited our attention to rule 78 and rule 578 of the Jail Code and has submitted that keeping any prisoner in jail after serving out of the sentence is gross violation of Human Rights and Fundamental Rights as guaranteed under our Constitution. From Rule 78 we find that it is the first duty of the Superintendent of Jails to release time expired prisoners after observing all the rules regarding return of their private property grant of subsistence allowance for the return to their homes etc.

6. Rules 570 to 578 contain the detailed procedure for release of the prisoners and also contain formalities which are to be observed. Mr. M Faruque, learned Deputy Attorney General has submitted that as regards the prisoners if they are released immediately after serving out of sentence according to the above rules, in that case such prisoners may face more difficulties and may be arrested again as they would not be in a position to show any valid papers regarding their entry in this country.

7. We have considered the question raised above. To our knowledge there is no rule either in the Jail Code or any other law as to the release of foreign prisoners. The procedure, so long followed, is to contact with the respective embassies of such prisoners and to make arrangement for their repatriation through their embassies and we have learnt that the Government have already taken steps in this regard and contacted with the High Commission of India and Pakistan. But by this time more than five years has past. We agree with the submission of the learned Advocate for the Ain o Salish Kendra that keeping in jail any prisoner after serving out the sentences amounts to violation of the Human Rights and Fundamental Rights as guaranteed by the Constitution of the country. So, we are of the view that the Government should take steps for release of such prisoners at least 3 months prior to the date of their release so that such prisoners do not languish in jail for indefinite period for no fault of their own.

8. In the memo dated 7-5-2001 of the Senior Jail Superintendent, it is mentioned that Ministry of Foreign Affairs has not yet taken any decision regarding the return of Myanmar prisoners. We have no materials before us as to why the Ministry of Foreign Affairs is not taking such decision by this time though four of the prisoners served out the sentences in middle of 1995 and two in 1996 and three in 1998. It is unfortunate that the Jail Authority, Ministry of Home Affairs and Ministry of Foreign Affairs remained silent regarding all those ten prisoners for such a long time of 5/6 years. On receipt of the copy of the judgment and order the Ministry of Home Affairs and Ministry of Foreign Affairs shall take immediate steps in this regard.

9. We have learned from the learned Deputy Attorney General and also from the above memo that as regards two prisoners of Tanzania, no steps could be taken as that country has no Embassy in Bangladesh. We have confirmed that Tanzania has Embassy at New Delhi. We fail to understand why our Ministry of Home and Ministry of Foreign Affairs did not contact with the Tanzania Embassy at New Delhi regarding those two prisoners of Tanzania. The explanation that Tanzania has no Embassy in Bangladesh cannot be a ground for keeping those two prisoners for indefinite period in jail.

10. From our above discussion it is clear to us that so long the steps taken by the Government of Bangladesh to solve the problem of repatriation of foreign prisoners after expiry of their terms of their sentence of imprisonment were not at all sufficient, as keeping in jail custody any prisoner after expiry of his term of sentence is violation of Human Rights and Fundamental Rights. It was they duty of the Government to take steps in time for their release. It is natural that some time would be needed to complete formalities of their release because Embassies of the different countries require to be contacted but even if after a reasonable time such prisoners cannot be released with the help and assistance of the respective Embassy. Government should release such prisoners and under no circumstances the prisoners should be kept in jail. We have tried to confirm whether there is any centre for giving shelter to such prisoners but neither the learned Deputy Attorney General nor the learned Advocate for the other side could provide us any such information. Further, we also think that it is the duty of the Government to ensure their safely and security after their release and for the purpose, the Government may consider making contact with Human Rights bodies or any International body such as International Red Cross Society or United Nations Commission for Refugee Rehabilitation, the International Organisation for Migration, Government may also consider setting up of separate cell in the Ministry of Foreign Affairs with a representative of Ministry of Home Affairs and the office of the Inspector General of Prisons to facilitate the timely release of the foreign prisoners and their repatriation.

11. In the result, the Rule is made absolute. The Superintendent of Central Jail Dhaka is directed to release 28 prisoners mentioned in the Rule (except the prisoner Md. Safi who died on 5-5-2001) after receipt of the reply from the respective Embassies of the countries of those prisoners. If the Embassies fail to make any arrangement for the repatriation of the prisoners to their countries within one month, the Ministry of Home Affairs shall take necessary steps within one month next for the shelter of those prisoners on their release from the prison in the light of observations made in the judgment till their repatriation is finally arranged. The Superintendent of Central Jail Dhaka shall report about the release of the above prisoners within 3(three) months.

The Inspector General of Prisons is directed furnish full particulars of the remaining 822 fore prisoners and also to report within seven days as what steps have been taken by this time for the release.

Ed.

Criminal Miscellaneous Case (Suo Motu Rule) No. 2737 of 2001,
Reported: 53 DLR (2001) (HCD

◙Gender and Social Justice, Ain O Shalish Kendro - ASK

Background of the project:

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.

To try and correct such discriminatory and illegal verdicts, the national NGO Ain O Shalish Kendro is conducting a Gender and Social Justice program that has its main objective the reform of traditional shalish interpretations and the attitude of shalishkers or mediators. A major strategy here is to develop community awareness and draw on community participation, particularly of women, to persuade local representatives and community leaders to base their shalish decisions on existing laws.

With this in mind, ASK approached ADB for funding to expand its activities into the area of shalish and legal awareness within shalish practices at the local (Union and Ward) level. This builds on ASK’s long association with legal rights and legal aid. Established in 1986 by a small group of lawyers, social scientists and development workers, ASK has been providing support to women in the areas of legal counseling, mediation and litigation through its legal aid, advocacy and research activities.

Project Components: The overall objective of the Gender and Social Justice program is to reduce unlawful shalish judgments and to correct discrimination against women inherent in many shalish practices. The main mechanism to achieve this is the development of Ain Shohayota Committees (ASCs). The role of these ASCs is to monitor arbitration practices as well as to provide a source of arbitration at the Ward level. To achieve this, ASK undertakes a number of community consultations and training programs. The aim here is to establish strong, socially aware ASCs with sufficient training on legal matters, women’s rights and shalish processes to enable them to effect changes in the attitudes and judgments of arbitrators. In terms of the current project, ASCs will be established in six Unions (covering 54 Wards). ASK operates the program in five districts with the support of four donors of which ADB is one. The areas of operation is not specified by donor, so all donors together support the program in the five districts.

• Make local elected representatives and law enforcement agencies sensitive to the principles of gender justice and equality as guaranteed in the Constitution.
• Enable poor women to participate in shalish and other decision making processes to equality of justice.
• Strengthen the capacity of local groups to monitor enforcement mechanisms and advocate alternatives within a democratic system.
• Monitor local shalish by ASC to ensure that it is participatory and gender and socially just.
• Prevent fatwa and unlawful shalish.
• Develop human rights activists at the community level.
• To develop the capacity of partner NGOs to conduct and sustain the program.

To achieve these goals, ASK works in collaboration with sympathetic partner NGOs in the local area. ASK provides its PNGOs with training and legal support. Staff of PNGOs and ASK meet twice yearly in each working area to discuss, review and analyze issues related to implementation. The PNGOs are responsible for implementing as well as monitoring the program. They therefore select the community organizers who are to mobilize community support for the development of ASCs and ensure their sustainability. The role of the community organizer includes:

• Attending all ASC-related meetings and workshops.
• Developing a good relationship with members of elected bodies.
• Advising on more difficult/complex cases, or referring such cases to the PNOG or ASK for legal aid.
• Monitoring the progress of cases referred to legal aid for court action, including those that cannot be dealt with by shalish (such as rape and murder).
• Providing support to victims, e.g. by accompanying them to other districts to pursue their case.
• Arranging follow-up training for ASC members.

The focal point of the project is the development of effective ASCs. These committees consist of five members, including at least two women. The ASCs operate at the ward-level, with a total of 45 ASC members in each Union (there are nine wards per union). They are recruited during Union-level workshops organized by ASK. While this process is conducted with the cooperation of the local elected bodies, ASC members are not themselves local elected representatives. It is important that the ASCs maintain an independence so that they can be seen as an impartial monitoring and consultation unit.

Following selection, ASC members receive training and participate in workshops designed by ASK to develop their legal awareness and mediation skills. Recruits receive an initial 3-day training, where they are provided with easy to read materials on how to mediate disputes, training in common legal issues, and strategies on how to prevent unlawful shalish. Common legal topics covered in the training include legal rights of children, bride price, dower, shalish, marriage registration, divorce, Muslim and Christian Family Law, Muslim inheritance law, Family Law Ordinance (1988), guardianship, etc.

To support the activities and training needs of ASC member, there are on going monthly review meetings. Generally, three ASCs meet every month (with a total of 15 members). There is also a monthly meeting of all ASCs in one union. The community organizer and ASK’s lawyers also attend all meetings in order to provide advice and refer complicated cases to ASK, partner NGOs, such as MUKTI and to the police and court as needed.

ASC activities are also supported by popular theater teams, which complement the project but are not directly funded by it. Popular theater draws on the talent and enthusiasm of local actors and musicians to raise awareness about women’s legal rights and legal provisions related to common problems such as dowry, divorce, polygamy, violence against women, etc. Performances are informal making use of limited props and resources, and generally reflect on a recent issue in the area. Following the performance, the audience is asked to comment on and discuss the issue raised. Popular theater teams usually comprise about 15 members and are established at the union level. Popular theater teams also receive some training, similar to that provided to ASC members.

According to three ASC members interviewed in the district of Kushtia, the work of ASC members is similar to that of community workers. Although unpaid, they give their time in order to help the predominantly poor residents in their ward settle conflict through arbitration. The two farmers and house wife interviewed agreed that ASC activities were having an influence on local affairs. They already claim to have had some success in mediating disputes (see Sultana’s Story below), as little-by-little, more people bring their troubles to ASC members. They have also been able to work with the police to lay charges against a few offenders under the new Women’s and Children’s Repression Act (2000). Consequently, they report a decline in the extent of violence against women in the area.

The female ASC member said how women’s participation as ASC members was particularly important given that the main issues and conflicts they deal with relate to family matters and violence against women. She said that many women would not confide such personal matters to men and prefer to deal with female ASC members. These ASC members also worked closely with the Popular Theater Team, which at times worked to garner public support for victims involved in unsettled disputes.

Sultana’s Story: After the sudden death of her husband from lightning, Sultana found life with her husband’s family increasingly unbearable due to the constant verbal and physical abuse she received from her mother-in-law. In the end, she fled to her parents' house shortly after the birth of her son. However, her husband’s family would not allow her to take her baby with her, so once back with her parents, she approached ASC for help. Because her in-laws lived in another district, ASC members - together with the ASK community organizer - approached ASC members and the police in that district. Through a process of arbitration, involving ASC members from both districts, the young widow was eventually reunited with her baby in her parents' home.

Two Plays by the Popular Theater Team

Domestic dispute: This story was based on a case that ASC was involved with but unable to solve. A young woman was abandoned by her husband in her parents' home following a domestic dispute. The case came to ASC as the young woman wanted to resume living with her husband, but his parents were against it. ASC tried to facilitate a reunion but failed; the case was then referred to MUKTI, but to no avail. Finally, the Popular Theatre Team developed a drama based on the story of an unhappy, abandoned wife. This lead to a happy ending with the young woman once again living with her husband.

A warning against early marriage: This play was developed by the Popular Theater Team to discourage early marriage for young women and girls. In developing the play, the Team consulted with the marriage registrar and used materials provided by ASK. They also drew on local experiences to highlight the negative consequences for women of early marriage, including their withdrawal from school, the effect on young women’s psychological development and early pregnancy. The play was quite controversial and resulted in a lot of discussion, with the performers believing that the play has made a difference to local attitudes.

Future Directions: There is potential to replicate elements of this project in wards and unions throughout Bangladesh. Working with other partner NGOs, ASK has the legal experience and institutional capacity to manage such a project.

ADB could also build on this project to consider the role of shalish and the potential of ASC as alternative dispute resolution (ADR) mechanisms in ADB-financed legal and judicial reforms. In particular, ADB should build on the training modules and experience learned during this project to promote legal and shalish reforms that respect the rights of women, work within the existing laws of Bangladesh and monitor the incidence of illegal shalish rulings and procedures.

There is also scope to consider shalish and ADR in future program loans and technical assistance targeting violence against women. The very personal nature of such crimes often inhibits women from approaching formal police avenues. The cost of pursuing police and court action is of course another barrier here. The Ministry of Women and Children Affairs and the Ministry of Law and Parliamentary Affairs could act as executing agencies for Government projects in this area.

◙  BLAST  ◙

Legal aid: - BLAST provides legal advice and representation at all levels of the justice system with an emphasis on providing services to those living in poverty or facing disadvantage or discrimination. Legal services, including mediation, litigation and legal rights training, are provided through Blast’s head office and nineteen unit offices throughout Bangladesh.

Mediation: BLAST facilitates alternative dispute resolution (ADR) through mediation for family, land, financial, petty criminal and labor matters. BLAST has settled over 15,000 disputes across the country since 2003. Resolving disputes through mediation allows individuals and families to quickly recover land, assets, maintenance, dower and/or arrears of wages. The recovered funds are used by clients for many purposes: to earn livelihoods, to begin savings, or to send children to school. By providing mediation services, BLAST has also contributed towards reducing the overwhelming number of cases pending before local courts.

Litigation: BLAST provides advice and representation for individuals whose disputes cannot resolve through mediation or who have been the victims of criminal offences or human rights violations. The overwhelming number of BLAST’s clients is women living in poverty. BLAST has filed over 35,000 cases since 2003, and the majority of resolved cases have been decided in favor of its clients. Blast’s litigation services play a crucial role in ensuring access to the justice system for poor and vulnerable people. BLAST also files public interest litigation (PIL) petitions in the Supreme Court of Bangladesh.

Awareness/Training:BLAST conducts awareness programmes across Bangladesh among the public regarding legal rights and remedies, focusing on courtyard meetings for women.  BLAST also conducts training workshops for local community leaders to build legal awareness.

Gopigagh Legal Aid Clinic:BLAST’s legal aid clinic undertakes awareness activities for Dhaka slum dwellers on laws and Constitutional rights that affect them most. The clinic also provides mediation services. The clinic mediators are well respected by both men and women of the community, and they are able to improve the well-being of community women through mediation. The clinic also makes referrals to other organizations to make sure individual needs outside the scope of BLAST’s work are met.

Investigation:BLAST has conducted over 175 investigations of human rights violations, including those impacting on women and girls, religious or ethnic minorities and children. Investigations and research studies have allowed BLAST lawyers to support ongoing litigation by BLAST and other organizations and to underpin its advocacy initiatives to address gaps in laws and institutional responses.

Case study:

Release from Violent Marriage through Divorce, and Recovery of Dower:Sajeda was married according to Muslim law and Tk. 40,000 was fixed as dower. Sajeda found that her husband never treated her as his wife and instead demanded that she and her family provide him with money. He beat her brutally when she couldn’t meet these demands. Sajeda was forced to return to her parents’ home where she lived in great difficulty.

Sajeda filed a complaint about her husband’s violence with BLAST, who sent a notice to him, suggesting that the matter be settled through mediation. It was mutually agreed that Sajeda would divorce her husband by exercising the powers of Talaq-e-Tawfiz (delegated divorce) under her nikahnama (marriage contract), and that he would pay her the full amount of dower money owed to her. Sajeda deposited part of the amount she recovered from her ex-husband in a bank and is now employed at a garments factory.

Recovery of Wages Following Termination:For two days, Saiful could not go to work at the factory where he was an assistant manager due to his father’s illness. During his absence, the general manager of the factory telephoned him to say that he was no longer employed by the factory. When Saiful tried to claim his due salary and other legal benefits, the general manager refused to pay him.

Saiful came to BLAST for legal aid. BLAST issued letters to the factory authorities calling them to a mediation. On receiving the notice, the factory informed BLAST that Saiful should collect his salary from the accounts department. Saiful was thus able to recover his dues through getting legal assistance.

Release from Prison of Woman with Mental Illness:Roksana’s brother informed BLAST that his sister had been convicted of child trafficking after being found carrying a three-year old child. She was sentenced to rigorous imprisonment for life. However, at the time she was arrested, Roksana was under treatment for mental illness at Pabna Mental Hospital, something the court did not take into consideration.

Roksana’s brother asked for BLAST’s help to recover his sister from prison. BLAST submitted her prescriptions and hospital documents to the High Court, which acquitted Roksana, enabling her to return to her family.

Recovery of Post-Divorce Financial Entitlements:Though a dowry had been paid at the time of their wedding, Fahima’s husband kept demanding money from her father. At first, Fahima’s father paid to save his daughter’s marriage, but when the demands kept coming, he could no longer keep giving. When Fahima’s father could no longer pay, Fahima was driven from her husband’s home and refused maintenance for herself or her son.

With BLAST’s help, Fahima filed a case in the Family Court to recover her dower money and maintenance. The Court awarded her a decree for Tk 56,000. Fahima’s ex-husband refused to pay at first, so BLAST ensured that the decree was executed. Fahima invested the money she recovered from her ex-husband with BLAST’s help in cultivating crops, from which she hopes to earn Tk. 5000 per year.

Mission: Blast’s mission is to make the legal system accessible to the poor and the marginalized.

Vision: BLAST envisions a society based on the rule of law in which every individual particularly the poor, the marginalized and excluded, in particular women, as well as children, peoples with disabilities, adivasis, and dalits have access to justice and their human rights are respected and protected.

Objectives: In view of the above vision and mission statement, specific objectives of BLAST are:

Ø     To provide free legal aid and to undertake public interest litigation and advocacy activities to ensure that opportunities for securing justice are not denied to any person for any reason;

Ø     To administer a trust fund for establishing and maintaining legal aid and services units supported by the grants from the Trust;

Ø     To establish legal aid/assistance and human rights protection units in the bar associations and in different localities of the country, including rural areas;

Ø     To conduct special training programmes through which relevant skills and expertise can be imparted to lawyers, activists and others;

Ø     To coordinate the activities of the units with other organizations, including NGOs working in related fields;

Ø     To publish original research articles and reports about matters useful to lawyers;

Ø     To promote improved legal education, including awareness of responsibility for providing legal aid to disadvantaged persons, and to promote, establish and maintain national institutions for legal education;

Ø     To organize seminars, symposiums and extension lectures on various law subjects for advocates, teachers, law students, and to promote participation in international conferences, workshops, and training and educational programmes.

Case:-

Name of the Parties: Bangladesh Legal and Services Trust vs. Bangladesh and others
Writ Petition No. 4191 of 1998

Issue: Children's Rights; Right to Liberty

Law: Constitution of Bangladesh; Special Powers Act, 1974

Reported: 4 BLC (HCD) (1999) 600

Name of the Parties: Bangladesh Legal Aid and Services Trust and another vs. Bangladesh and others

Writ Petition No. 1341 of 2000

Issues: Children’s Rights; Right to Fair Trial

Law: Constitution of Bangladesh; Nari-O-Shishu Nirjatan (Bishesh Bidhan) Ain, 1995; Children Act, 1974; Code of Criminal Procedure, 1898

Reported: 22 BLD (HCD) (2002) 206

Name of the Parties: Bangladesh Legal Aid and Services and Trust and others vs. Bangladesh and others

Writ Petition No. 3806 of 1998

Issue: Right to Life, Right to Freedom from Torture and Arbitrary Police Action

Law: Constitution of Bangladesh, Code of Criminal Procedure, 1898; Penal Code, 1860; Evidence Act, 1872; Police Act, 1861

Reported: 55 DLR (HCD) (2003) 363

Name of the Parties: Bangladesh Legal Aid Services Trust and others vs. Bangladesh and others

Writ Petition No. 7578 of 2003

Issue: Children's Rights; Right to Fair Trial

Law: Constitution of Bangladesh; Code of Criminal Procedure, 1898; Penal Code, 1860; Children Act, 1974

Reported: 57 DLR (HCD) (2005) 11

Name of the Parties: Bangladesh Legal Aid and Services Trust vs. Bangladesh (Secretary, Ministry of Health and Family Welfare) and others

Writ Petition No. 1043 of 1999

Issue: Right to Health; Accountability and Institutional Reform

Law: Constitution of Bangladesh; Iodine Deficiency Diseases Prevention Act, 1989; Iodine Deficiency Diseases Prevention Rules, 1994

Reported: 25 BLD (HCD) (2005) 83

Name of the Parties: Bangladesh Legal Aid and Services Trust vs. Bangladesh (Secretary of Law, Justice and Parliamentary Affairs) and Another.

Writ Petition No. 4502 of 2003

Issue: Access to Justice; Accountability and Institutional Reform

Law: Constitution of Bangladesh; Gram Sarkar Ain [Village Government Act], 2003 (Act VI of 2003); Local Government Ordinance, 1982 (Ordinance No. LIX of 1982)

Reported: 60 DLR (HCD) (2008) 234

Name of the Parties: Bangladesh Legal Aid and Services Trust vs. Bangladesh (Secretary, Ministry of Post and Telecommunications) and others

Writ Petition No. 2060 of 2001

Issue: Accountability and Institutional Reform

Law: Constitution of Bangladesh; Members of Parliament (Salaries and Allowances) (Amendment), Act, 1992; Telegraph Act, 1985

Reported: 60 DLR (HCD) (2008) 177

Name of the Parties: Bangladesh Legal Aid and Services Trust and others vs. Bangladesh and others

Writ Petition No. 1534 of 1999

Issue:  Accountability and Institutional Reform

Law: Constitution of Bangladesh; Town Improvement Act, 1953

Not Reported

Name of the Parties: Bangladesh Legal Aid and Services Trust and others vs. Bangladesh and others

Writ Petition No. 5915 of 2005

Issue: Right to Shelter

Law: Constitution of Bangladesh, East Pakistan Government Land and Building (Recovery of Possession) Ordinance, 1970

Reported: 13 BLC (HCD) (2008) 384

Name of the Parties: Bangladesh Legal Aid and Services Trust vs. Secretary, Ministry of Law, Justice and Parliamentary Affairs

Writ Petition No. 606 of 2006

Issue: Access to Justice; Adivasi Rights; Accountability and Institutional Reform

Law: Constitution of Bangladesh; Chittagong Hill-Tracts Regulation (Amendment) Act, 2003; Chittagong Hill-Tracts Regulation, 1900 (Regulation 1 of 1900); Nari-O-Shishu Nirjatan Daman Ain, 2000 [Suppression of Violence against Women and Children Tribunals]

Reported: 61 DLR (HCD) (2009) 109

Name of the Parties: Ayesha Khanam and others vs. Bangladesh represented by Secretary, Cabinet Division, Bangladesh Secretariat, Dhaka and others

Writ Petition No. 3974 of 2004

Issue: Women’s Rights

Law: Constitution of Bangladesh, Article 65(3)

Reported: 11 MLR (AD) (2006) 237

◙  BELA  ◙

As a group of lawyers, BELA was established in 1992 with the broad objective of promoting environmental justice and contributing to the development of sound environmental jurisprudence. Environment and natural resources support the lives and livelihood of majority of the people in Bangladesh in numerous invaluable ways. Two third of the Gross Domestic Products (GDP) comes from agriculture whereas sixty percent of the people have their only protein intake from the rich sweet water fishery of the country. Bangladesh shares with India the largest mangrove forest of the world and the largest unbroken coastline. The country has an extensive network of about 300 rivers with a flow of 25, 000 kilometres. The hill areas of Bangladesh are known for their rich biodiversity and cultural diversity.

While Bangladesh could have been known in the world for its rivers, coastal areas, forests, biodiversity and related culture, the country instead has been portrayed as a land of dense population, disasters and miseries. This has happened mainly due to faulty policy priorities and approaches and of course poor governance that also accounts for non-implementation of environmental laws. A narrow and isolated law/policy making trend resulted in over exploitation of resources nullifying the notion of sustainable use and utilization and undermining peoples’ dependence on the same. The environment in Bangladesh is also challenged by some regional activities and vulnerability to global environmental crisis like climate change, sea level rise, and trade in hazardous wastes and so on.

In such a backdrop, BELA started its mission as a legal advocacy group of young lawyers working out techniques and strategies in dealing with the legal regime for the protection of environment. Founded by Dr. Mohiuddin Farooque, the organization has led the pathway for environmental legal activism in the country and has been the pioneer of public interest litigation in Bangladesh. BELA has adopted various means to create awareness amongst major the actors and the common people about their environmental rights and duties. BELA has published books and other awareness materials, all having relevance to the concept of environmental protection. It is also active in promoting the concept of participatory law making in the country.

Judicial Workshop: Given the fact that Bangladesh now has Environmental Courts to deal with environmental offences, special workshop is organized exclusively for the judicial officers in coordination with the Judicial Administration on Training Institute (JATI).

Public Interest Litigation (PIL): The use of legal mechanism as a tool produced various means and ends in addressing environmental injuries. The agenda of PIL was mainly based on strategic issues to generate awareness amongst the common people and all the actors for development of a realistic regulatory framework and parochial environmental jurisprudence.

Following a BELA case in 1996, the concept of PIL was recognized by the judiciary that has allowed the millions of voiceless an access to the formal justice system.Meanwhile, BELA has instituted more than 40 cases on environmental issues. The cases involve wide range of issues including river pollution, industrial pollution, vehicular pollution, labor welfare, compensation for losses inflicted by development projects, encroachment of important wetland, and relocation of industry and so on. The issues are both national and local in nature.

The major achievements of BELA in the filed of Public Interest Environmental Litigation (PIEL) include recognition of ‘right to environment’ as part of constitutional ‘right to life’; directive judgments with regard to against industrial pollution, vehicular pollution; payment of environmental compensation in development projects; river encroachment; unlawful filling of flood plain zones and so on. 

 Most recently, BELA has set up a regular cell where complaints are received and scrutinized for legal persuasion.

List of PIL of BELA: The concept of public interest litigation as has emerged into the judicial administration of Bangladesh is yet to mature with the concept of justice guaranteed by the Constitution. This is a crucial concept in a country like ours where 65% of the total populace have no or less access to judiciary although the constitution commits for equality before law, justice, right to life and equal enjoyment of fundamental rights by all citizens. With obvious socio-economic constraints and a long history of feudal past, the realization of legally recognized rights is still subject for movement by various social and pressure groups. In recent time the movement for enjoyment of rights took a new dimension as the potential of judiciary is being increasingly emphasized by the activists and the courts are dealing with cases seeking relief against administrative anarchy and ignorance. It was interesting to note that the concept of PIL is developing in Bangladesh as a performance of public duty by some citizens groups holding or advocating in support of progressive ideologies. Thus in 1994 a petition was first taken before the High Court by a national non-governmental organization called Bangladesh Environmental Lawyers Association (BELA) on behalf of the people of a locality where a disputed development action was being implemented. The petition was at first rejected by the court on the ground of standing of the organization. An appeal was preferred from that rejection where the core question was whether groups like BELA with dedicated and sincere record of activism can claim to have acquired sufficient interest to seek judicial redress against anarchy in its own field of action. The question was vital as it was a constitutional requirement under Article 102 that it is only “a person aggrieved” who can file petitions for enforcement of fundamental rights. Being responded by the Supreme Court in the positive this became the turning point in the history of PIL in Bangladesh.

BELA that led the movement for opening up the horizon of PIL in Bangladesh has filed the cases noted below:

 Dr. Mohiuddin Farooque v. Election Commission & others

 Writ Petition No. 186/1994 (Nuisance during Election Campaign)

The first ever-environmental litigation was filed in 1994 in the form of a Writ Petition in the High Court Division of the Supreme Court of Bangladesh by a group of environmental lawyers called the Bangladesh Environmental Lawyers Association (BELA). It was filed against the four authorities of the Government responsible for the enforcement of various civic rights, and accordingly, the respondent was the State. The election of the four Municipal Corporations of the country, held at the beginning of this year, evidenced gross violation of some legal obligations and, consequently, interfered with the various rights of the people. The unlawful activities created by the election campaign resulted in encroaching on public properties, restricting and depriving the rights to life, property, enjoyment of public resources, etc. of the city dwellers. The footpaths and other public places were saturated with election camps; incessant use of loudspeakers and other noisy instruments rendered life miserable; the walls of the four major cities of the country where the elections were being held were all covered with election slogans; unscheduled and unregulated processions created serious traffic jams, and so on. Repeated appeals by the Election Commission for showing respect to the laws of the country were virtually ignored. All this anarchy prompted the institution of a petition where the Hon’ble Court issued rule nisi upon the respondents asking them to show cause as to why they should not be directed to comply with the directive issued by the Election Commissioner touching upon the various acts and laws and rules. The Court also considered the prayer of the petitioner to restrain the Election Commissioner from holding the election till full compliance with the respondents. The rule, however, was disposed of, following assurance from the Attorney General that the Government would take all necessary steps to implement all the directives of the Election Commission.

Dr. Mohiuddin Farooque v. Bangladesh & others

Writ Petition No. 891/1994 (Industrial Pollution Case)

In 1994 BELA filed this Writ Petition seeking relief against indiscriminate pollution of air, water, soil and the environment by 903 industries of 14 sectors identified as polluters by the Ministry of Local Government, Rural Development and Cooperatives (LGRDC) vide Gazette notification dated 7 August 1986. The 14 sectors include Tanneries, Paper and Pulp, Sugar Mills, Distilleries, Iron and Steel, Fertilizer, Insecticide and Pesticide Industries, Chemical Industries, Cement, Pharmaceuticals, Textile, Rubber and Plastic, Tyre and Tube and Jute.

The Notification of 7th August 1986 directed the Department of Environment (DoE), the Ministry of Environment and Forests (MoEF) and the Ministry of Industries to ensure within three years that appropriate pollution control measures were undertaken by those industries. The Notification also required the said authorities to ensure that no new industry could be set up without pollution fighting devices. But unfortunately, even after the lapse of eight years when no measure was taken the above Petition was filed.

After seven years since the date of filling of the petition on the 15 July of 2001, the court has directed the Directed General, Department of Environment to implement the decision taken with regard to mitigation of pollution by 903 industries identified as polluters within the time frame of six months from the date of the judgment.

 The Petitioner pleaded that the ecological system of the country more particularly the air and water including the major rivers (Buriganga, Surma, Karnaphuli and so on) are being severely affected by the identified 903 industries and that no affirmative action has been taken in furtherance of the decisions of the Gazette dated 7th August, 1986. Rather the number of polluting industries has multiplied as the recent list prepared by the DoE shows that the number of polluting industries have raised up to 1176. The Court earlier issued Rule Nisi to the Respondents including the LGRDC, Ministry of Environment and Forest, Ministry of Industries and Department of Environment to show cause as to why they should be directed to implement the decisions of the Government dated 5 June, 1986 which was published in the official Gazette. After hearing the Petitioner, the Rule has been made absolute today and the DG, DoE has been directed to “Report to this Court after six months by furnishing concerned affidavit showing that compliance of this Order of this Court”. To ensure implementation of the Court directions, the Hon’ble High Court further held that “It will be imperative on the part of the Director General to take penal action against such department for persons who are responsible for not implementing the letter of the Environment Conservation Act, 1995.”

There are some other cases which are pending.i. e.,

Dr. Mohiuddin Farooque v. Bangladesh & others
Writ Petition No. 1252/1997 (Unregulated Operation of Brick Field)
Mr. Iqbal Hossain v. Bangladesh & others
Writ Petition No. 2541/1997 (Participation by the Blinds in BCS)
. Dr. Mohiuddin Farooque v. Bangladesh & others
Writ Petition No. 6020/1997 (Hill Cutting Case)

Dr. Mohiuddin Farooque v. Bangladesh & others

Writ Petition No. 6105/1997 (Gas Explosion at Magurchara)

Nijera Kori v. Bangladesh & others
Writ Petition No. 1162/1998 (Allotment of Land for Shrimp Cultivation)

◙ ASA ◙

 Welcome to the website of ASA, one of the leading Microfinance Institutions (MFIs) in the world.  ASA has been working relentlessly to reduce poverty since its inception in 1978. The formal banking sector in developing countries, like Bangladesh, does not typically provide financial services to the poor. This sector concentrates on large loans to the upper class, thereby completely excluding low income groups.

The microfinance movement, however, has shown that there is a thriving market among the poor when financial products cater to their specific needs. The poor are a quite active group in any economy. ASA has shown that their needs can be met while at the same time making the providing institution profitable as well.

Up to December 2009 ASA's cumulative Loan disbursement has been TK. 342,514 million (US$ 5,418 million) while loan outstanding (principal) is TK. 31,322 million (US$ 457 million) among 4 million borrowers. At the end of 2009 ASA's Operational Self Sufficiency (OSS) was 143.38%, Financial Self-sufficiency (FSS) 112.49% and rate of loan recovery 99.64%. ASA continues to perfect the role of financial intermediation by developing a variety of other products that are quite successful at generating necessary funds from local sources. This helps the poor to shield themselves against risks.

ASA is now also working in different countries, with Catalyst Microfinance Investors (CMI) through its ivnestment vehicle, ASA International (ASAI), to spread microfinance globally. This coverage is a must to meet the target of Millennium Development Goals (MDGs) and Microcredit Summit Campaign (MSC).

Vision of ASA: The vision of ASA is to establish a poverty free society.

Institutional Mission of ASA: The institutional mission of ASA is to support and strengthen the economy at the bottom of the socio-economic pyramid by facilitating access to financial services for the poor, marginalized and disadvantaged.

Objectives of ASA: The overarching objectives of ASA are to alleviate poverty and improve the quality of lives of the landless and asset less rural poor by providing them with access to financial services.

◙ Bangladesh Rural Improvement Foundation (BRIF) ◙

About BRIF: Bangladesh Rural Improvement Foundation (BRIF) is a not-for-profit non-governmental development organization (NGO) founded in 1984 in North-West Bangladesh. We endeavor to raise the socio-economic condition of some of Bangladesh's most disadvantaged and vulnerable communities by mobilizing local resources in an effective and pragmatic way. We involve people and communities in creating and delivering projects to develop their own health, education, rights and livelihoods for a more prosperous and sustainable future.

◙ Odhikar ◙

Detail Activities

Documentation and Networking: Odhikar has a documentation team that keeps the organisation updated with human rights abuses published in the major national dailies. The work of the documentation unit is to gather and document relevant information for investigation purposes from both the daily papers and personal and organisational sources/contacts, including human rights defenders.

Key topics of documentation:

Ø     Death/Rape and Torture by law enforcement agencies

Ø     Death in prison, Police and Court custody

Ø       Instances of Political violence/ repression

Ø     Freedom of Expression

Ø      Chittagong Hill Tracts affairs

Ø      Indo-Bangladesh Border conflict

Ø     Violence against women (Acid Violence and Rape)

Ø      Accountability of law enforcement and intelligence agencies

Ø       Religious and Ethnic Minority Rights

Ø     Arrests and abuse under Section 54 of the Code of CriminalProcedure. and Section  

       86 of the Dhaka Metropolitan Police Ordinances   

Ø     Election monitoring

Ø     Use and abuse of National Security Law

Ø       Issues concerning Police reform

Every month, the documentation team develops separate tables and graphs of the reported and published human rights abuses in order to determine and analyse the rise or fall of such incidents. These are included in annual human rights reports and monthly reports of human rights violations, which are distributed to the media for publication and to other NGOs. Other activities of the unit include cataloguing material for future reference and research work; compiling information for in-house use and in response to external requests; and preparing such documents and material for inclusion in the annual human rights reports. Fact-finding reports are also preserved in the documentation unit as well as reports from other NGOs, books, journals and seminar and workshop papers and presentations.

The system of documentation prevalent in the organisation reinforces Odhikar’s other activities of fact-finding, research and advocacy. Many of Odhikar’s fact-finding reports are the result of pressing reports on human rights abuse.  Systematic documentation of such violations and dissemination of information to interested organisations and individuals involve maintaining newspaper clippings and gathering of information from other sources.

Odhikar has earned good repute and credibility in human rights documentation, because of the organisation’s strictly neutral reporting policy. National and international media, foreign missions stationed in Dhaka and local, regional and international human rights organisations and networks regularly use information and statistics maintained by the Odhikar documentation unit. Odhikar interviews are occasionally heard on the BBC international and VOA news services (radio) and found in the annual human rights reports published by the US State Department.

Fact Finding:Odhikar fact-finding activities cover instances of torture, cruel, inhuman and degrading treatment or punishment and abuse of some specific laws leading to human rights violations, repression against innocent people and application of unnecessary force by law enforcement agencies.

Odhikar identifies incidents of human rights violations, which are reported in the newspapers but need further enquiry and information to clearly establish the actual abuse faced by the victims, causes behind the abuse and the persons responsible. While the media focuses on human rights violations more from a journalistic perspective confined within reporting the incident only, Odhikar fact-finding goes deep into the incidents from socio-legal perspective. Odhikar also conducts fact-finding of incidents of human rights abuses, which are not reported in newspapers but are reported by Odhikar’s grassroots level human rights defenders.

The fact finders at Odhikar submit reports of their findings for the purpose of documentation, publication in the country’s national dailies and for inclusion in the human rights reports Odhikar prepares. The written reports are handed over to those responsible for research and advocacy as well. 

Research:The Research Unit at Odhikar is responsible for the archival preservation and enhancement of the fact finding reports. This involves the inclusion of legal rights, available data and statistics from previous years and recommendations into the main text of the fact finding reports as well as translation and editing work. The work also involves the preparation of human rights reports, collection of data regarding various human rights abuses throughout the year and writing and publication of various articles on human rights abuses for public knowledge.

Another activity of the Research Unit is to keep international and regional human rights organisations, including Human Rights Watch - Asia, Asian Human Rights Commission, OMCT and South Asian Forum for Human Rights, updated and   aware of human rights conditions in Bangladesh. The research unit is also responsible for the writing of booklets and monographs based on Odhikar’s activities and updating its web page.

Election Monitoring and Observation: Odhikar believes in encouraging the electorate to vote freely and without fear to popularise the concept that the country needs the vote of every citizen. It also aims at campaigning and monitoring for free and fair conduct of the electoral process to ensure voters' rights. Odhikar maintains a close liaison with the Bangladesh Election Commission.

Odhikar has been monitoring national and local government elections in Bangladesh since 1996. The monitoring work of Odhikar is not only limited to Election Day, but also covers pre and post election periods. As an Executive Committee member of The Asian Network for Free Elections (ANFREL) Odhikar is also engaged in international election observation. To develop skills of election monitoring and observation, Odhikar conducts training programmes, orientation courses and also pre assessment surveys regarding human rights in relation to elections.

Media Campaign:Odhikar regularly conducts media campaigns for the protection and promotion of human rights. The data collected by the organisation are published is both Bangla and English language dailies on a monthly, quarterly and annual basis. Articles written by both staff and members of the organisation are published in special edition pages and legal rights supplements of national dailies as well.Statements issued by Odhikar, alone or jointly with other organisation are also published. The organisations website is also playing an important role in this campaign. All the major international instruments on human rights and research, publication, documentation and reports of Odhikar are available here.

Human Rights Defenders Training:In the year 2000 – 2001, Odhikar, as part of a project funded by the American Centre (formerly the United States Information Centre), trained 200 Human Rights Defenders  from eight Districts of Bangladesh.  The aim of the training programme was to create a grass-roots and local human rights network.  Apart from training on human rights issues, fact-finding and report-writing, Odhikar human rights defenders are also given training on election monitoring prior to every national election.

Advocacy:Through regular discussion meetings on various issues of human rights and their abuse, Odhikar brings together various groups of people,  including policy makers, politicians, lawyers, human rights activists and NGO activists,  journalists from popular daily newspapers and victims of human rights abuse. The findings and recommendations are discussed and the policy-makers are asked for comments and suggestions. In this way, and also through its publication of reports in the print media, Odhikar carries out its advocacy activities. One of the major successes of this advocacy work was the creation of the South Asia Network against Torture and Impunity (SANTI) by Odhikar.

Urgent Appeals:To campaign against major violations of human rights and also to put pressure on state actors for swift remedy for victims Odhikar sends urgent appeals across the globe through its network and website. Odhikar also responds to urgent appeals sent by other organisations.

 Internships / Volunteers:Odhikar has an internship/volunteer programme for local and international students, researchers and activists who are interested in doing filed and desk research work as human rights defenders in Bangladesh. The organisation provides a safe working environment for the interns/volunteers.

Good governance:One of the main focuses of Odhikar is promotion of good governance. Odhikar believes that without protecting human rights, ensuring good governance is impossible and vice versa Odhikar organises seminars, workshops and discussion meetings, including round table meetings with dailies, to promote the issue of good governance. 

Publications Odhikar publishes its research, investigation findings and monthly and annual reports on the state of human rights in Bangladesh in the form of bulletins books and reports. The following are Odhikar’s list of publications to date- 

• Project on Investigation, Research and Publication of Human Rights Violations, 2006
• Project on Investigation, Research and Publication of Human Rights Violations, 2005
• Campaign for the International Criminal Court in Bangladesh
• Project on Investigation, Research and Publication of Human Rights Violations, 2004
• Criminal Responsibility for Torture: A South Asian Perspective
• Project on Investigation, Research and Publication of Human Rights Violations, 2003
• Rome Statue of the International Criminal Court
• Freedom of Religion in Bangladesh
• Media, Democracy and Human Rights
• Our Children in Jail
• Human Rights and Police Custody-Dhaka Metropolitan Police
• Annual Report-2002
• Manobadhikar O Police: Prekhit Bangladesh (Human Rights and Police: Bangladesh Perspective)
• Police Reform in Bangladesh
• Murder, Mayhem, Land and the State
• Breaking the Cycle of Impunity
• Women and Children in Disadvantaged Situations
• Abuse of Section 54 of the Code of Criminal Procedure
• Reasonable Suspicion Vs Unreasonable Impunity
• Newsletters on the Electoral process of the October 2001 National Elections.
• Newsletters on the rights of children in Bangladesh.

◙ Personal Observations & Conclusion:-

In Bangladesh courts are overburdened with pending cases, the trial life span is inordinately long & the expenditure is very high. The abnormal delays in the disposal of trials & appeals have been a matter of great concern from the view point of administering justice.

The number of huge pending cases is a matter of great concern not only for the state but also for prisoners & victims. Introducing ADR is likely to reduce this horrendous number of pending cases as the introduction of the same in various countries has resulted in tremendous success.

In ADR system, the contributions of various NGOs in Bangladesh are to be seen. So, the role of NGOs in implementing ADR mechanism is very high.

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