A Layout of Restorative Justice

Kamrul Hassan (Nazmul)
In Bangladesh, the court system is mostly urban-centric. Therefore, delivery of justice in rural disputes has been rare for a long time. The emancipation of formal justice process in Bangladesh leads the disputant parties towards a win-lose situation. Although this process might settle a dispute but the inherent differences between the parties exist and the competing interests of the parties remain unresolved and the interpersonal relationship of the parties becomes more hardened leading further spiraling of conflict. Moreover, recourse to the formal legal system is costly, time consuming and difficult to access, particularly to the poor and the disadvantaged, which results in the huge backlog of cases. As reported by various studies with more than 2 million cases pending in the courts, and a ten to fifteen year backlog, the wait for justice can be a long one. The poor, with no available recourse to justice, therefore, look for alternatives to resolve their difficulties. Village Court is one of the alternatives rural poor community very often look for. It is run as per the Village Courts Act 2006 and Rules 1976. This article elaborates the nature and types of village courts with particular reference to the people’s benefit and philosophy of peace building. Bangladesh has a long history of informal dispute resolution mechanisms with a varying degree of procedures: the traditional shalish, NGO-reformed shalish and village courts are prime amongst them. Historically speaking, these mechanisms were not statutorily recognized. However, the introduction of the local government bodies paved the way for a statutory form of quasi-formal adjudication.
The establishment of village level courts on a legal basis was made by the Fraser Commission Report, 1902-03. Later on, the Hobhouse Commission of 1907-09 and Levinge Committee of 1913 proposed the creation of village-level courts to handle minor cases amongst village people. Accordingly, the Bengal Village Self-Government Act, 1919 (Bengal Act V of 1919) was passed. This was the first law to empower a local government body to adjudicate criminal cases. The Act established a ‘union bench’, corresponding to the present day village court, with concurrent jurisdiction with formal criminal courts to try petty criminal cases. Later on, in 1961, the Conciliation Courts Ordinance (Ordinance No. XLIV of 1961) was promulgated which empowered the ‘union council’ (local government) to deal with minor cognizable offences (section 3). This Ordinance was repealed by the promulgation of the Village Courts Ordinance, 1976 (Ordinance No. LXI of 1976) which was further repealed and replaced by the Village Courts Act, 2006 (Act No.19 of 2006).
This Act and the Village Courts Rules, 1976 regulate the formation, jurisdiction and functioning of the village courts which is an ad hoc forum for adjudicating minor disputes or conflicts in rural areas. In case of any dispute under this Ordinance any of the disputant parties can apply to the Chairman of the Union Parishad (UP) for remedy through formation of a Village Court. A village courts is composed of the UP chairman and four representatives- two from each party, one of them being a member of the parishad. Moreover, the UP Chairman is generally the Chair of the Village Court. A Village Court is constituted and has jurisdiction to try a case only when the parties to the dispute reside within the limits of the union in which the offence has been committed or the cause of action has arisen.
Observance of village Court is also under the supervision of LGD, rather than of the Ministry of Law, Justice and Parliamentary Affairs while the formal courts and judicial process are connected with the Ministry. This placement reflects the distinctiveness of the village courts from the rest of the formal judicial system: Village Court is more local and less legal. Although village courts are a formally constituted judicial forum, their functioning is only semiformal or quasi-formal since the technical rules of procedure, as prescribed by the Code of Criminal Procedure (Act V of 1898) and the Evidence Act (Act I of 1872) are not applicable (section 13(1). This Village Court follows a legal framework but the principles of restorative are reflected within its systems as outlined in the Act and Rules. The Village Courts process is perceived as largely informal in nature and participation of community is ensured through nominations by both parties including a community representative. Moreover, there is a scope of reconciliation in the Rules without constitution of village court (Village Courts Rule 33) and the Village Courts can’t inflict any punishment in the decision of a case rather it can only pass order of compensation. The amount should be up to Tk. 25,000 (about US $ 360) in a criminal case to an aggrieved person (Section 7(1)) and issue order to pay Tk. 25,000 (about US $ 360) of return the property or possession of the same to its real owner. Furthermore, the appointment of legal practitioner is completely prohibited in a village court (Section 14). Since no technical laws of procedures and evidence are applied and no professional lawyers are present, it creates a space for the community to apply, to a great extent, community sentiments, understanding, values and preference in the decision making process. It focuses on the root causes of the disputes in participation of the nominated community representatives and looks for win-win solution so that no spiral of further disputes takes place. The community has responsibilities for the situations that are causing or encouraging crime. Ideally, the restorative justice process can provide a catalyst and/or a forum for exploring and assigning these needs, responsibilities, and expectations, which is evident in the practice of village courts.
As opposed to, in the formal judicial process which is based more on retributive principles, the system requires the punishment of the offender, focusing on the law that has been violated, rather than taking into account the victim’s interest or priority. This community participation in village court’s judicial decision making process is more empowering for the local leaders, and works towards making the system more responsible and sensitive to their community building and social protection. The open forum hearing system is helping to enhance increased sense of ownership over the local peace building process and promotion of communal harmony. The victims and offenders have an active role and right to participate in the choice of the adjudicators. These positive effects are contributing towards minimizing social conflict, human rights violation and improving mutual respect to each other. The village courts process can successfully address the underlying problems that emerge as crime and dispute, rather than continuing the criminal justice system’s focus on the offenders only. This wider and active participation promote agency among the community to handle their local disputes and thus transform their internal conflict in a more sustainable fashion. If the decision of a village court is unanimous or by a majority of 4:1 (or 3:1 if the decision is reached in the presence of only four members of the court), the decision is binding on the parties (section 8(1)). But, if the decision is by a majority of 3:2, any party to the dispute may, within thirty days of the decision, appeal to any judicial magistrate of the first class having jurisdiction over the case (section 8(2)(a)). The said magistrate may, if satisfied that the village court failed to render justice, set aside or modify the decision or refer the case back to the village court for reconsideration (section 8(3)).
Notwithstanding anything contained in any other way for the time being in force, any matter decided by a Village Court cannot be tried in any Court, including a Village Court. Village courts have exclusive jurisdiction to try all disputes that are enumerated in a schedule to the Act (section 3(1)).
Consequently, the taking cognizance or holding a trial of any of these offences by any criminal court is not permitted and without jurisdiction. Even when the parties to a dispute seek to have one of these offences tried by a criminal court and thus bypass the village court, the criminal court cannot assume jurisdiction. However, if the chief judicial magistrate in the district is of opinion that a case triable by and pending before a village court should be tried in a criminal court in the public interest and that of justice, he may withdraw that case from the village court (section 16(1)). Similarly, a village court may forward a case to the criminal court for trial and disposal if it is of the opinion that the accused deserves punishment in the interests of justice (section 16(2)).
The above combination of formal principles of the state legal structure with a more informal approach in dealing with disputes puts these local level judicial activities in between the retributive judicial institutions of the state and other entities that flourish under the auspices of communities themselves following restorative principles without the support of state law. Therefore, the local level judicial existence in this case village courts- can be treated as an alternative restorative fora to the formal judiciary, which is playing a excellent role in resolving local disputes peacefully and thus promoting social safeguards to avoid further local conflicts spiraling out of control. The newly surfaced dilemma to be change primarily from observance of village courts which is layout of restorative justice.

Writer : M.S.S (Victimology & Restorative Justice), University of Dhaka.
E-mail: khnazmul.law@gmail.com


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