Save time, save cash-- boost ADR use | 2019-02-11

Save time, save cash-- boost ADR use

Firoz Al Mamun

11 February, 2019 12:00 AM printer

Alternative Dispute Resolution (ADR), an out-of-the-court dispute settlement system, needs special attention now to let people know its benefits as experts say lack of interest among the litigants and lawyers has increased backlog of cases in courts across Bangladesh.

This has resulted not only in a downward trend in the use of ADR, but the litigants were faced with massive loss of time and money. Experts recommended more use of ADR to reduce huge backlog of cases. 

Although the government introduced ADR to reduce case backlogs, it has remained unpopular among the quarters concerned.

Senior lawyer of the Supreme Court, Manzill Murshid, told the daily sun that “some civil disputes and family matters can be settled through ADR, but the system is not being effective in our country for lack of legal knowledge among common people, non-compromising attitude of the clients and lack of interest of a section of lawyers in helping arbitration.”

The country’s judiciary is bogged down by case backlogs causing financial and other sufferings to the litigants for delay in submission of investigation and autopsy and other examination report to court, non-appearance of witnesses and frequent adjournment and grant of time to the case parties.

Around 33.96 lakh cases were pending with various courts across the country, Law Minister Anisul Huq has said earlier. He added that to reduce case backlogs there was no choice but to make the ADR effective.

The lower courts across the country settled 2,79, 606 cases including criminal and civil in three months from April 1 to June 30 last year, leaving 29,38,445 pending, according to a Supreme Court statistic. A total of 55,911 civil cases were settled in the three months. Of those, 54,110 cases were settled by court through judicial procedure and 1,801 by using ADR.

It means only 3.22 percent cases were settled through the ADR during that time.

Legal sources said a small portion of cases are settled in a given time while courts receive new cases. But there are certain cases which are not settled for long.  A survey shows that 3,04,559 civil and 2,43,455 criminal cases were pending with all lower courts across the country for over five years.

During the period, Appellate Division of the Supreme Court disposed off 974 appeals leaving 19,493 pending while the High Court Division settled 9,546 cases leaving 4,95,415 pending.  

There were 13, 026 various civil and 6,351 criminal and 116 contempt appeals and petitions were pending with the Appellate Division as of June 30 last year. A number of 94,492 civil and 3,12, 205 criminal appeals and revisions were pending with the High Court. On April 1, 2018, the HC was burdened with 81, 609 writ petitions including 4,247 revived. The HC disposed off 2,670 writ petitions during three months, leaving 78, 939 pending.

Besides, law minister Anisul Huq said the government earlier introduced ADR through amendment to the Code of Civil Procedure for expediting settlement of civil cases. The number of settled cases through ADR is poor and litigants are not interested in the procedure, he opined.

Talking to the Daily Sun, he said “We will take vigorous steps to promote ADR to increase the number of settled cases which will reduce case backlogs.”

Recently, Justice Md Ashraful Kamal of the High Court opined that if all judges deal with pending cases regularly without receiving new cases, they will take 30 years to dispose off all cases.

He made the statement while hearing a writ petition filed by Human Rights and Peace for Bangladesh seeking eviction of illegal structures from bank of Turag river.

The judge underscored need for empowering National Human Rights Commission, National River Protection Commission (NRPC) and other important bodies to settle many disputes. If the bodies can settle problems within their jurisdiction, the court will get rid off writ petitions and other cases.

Former Chief Justice and Law Commission Chairman ABM Khairul Haque blamed poor number of judges, delay in investigation, graft of time, deferment of trial, not pleading guilty by the accused, and non-appearance of witnesses are responsible for case backlogs.

About ADR, he said “ADR cannot be applied in all kinds of cases. If two persons are locked in dispute over a property, none of them will agree to sacrifice and agree to settle the problem through arbitration.”

Citing example of quick disposal of cases in countries, he said “No innocent people are implicated in any case in civilized countries. In the UK, 90 percent of the accused plead guilty due to the fact allegations against them must be proved and they must be punished. Those who plead guilty, their punishment are commuted.  It is one of the main reasons for quick settlement of cases there. In our country, criminals think that they may somehow skip charge and indictment.”

He underscored the need for strict application of law by police and all others concerned to encourage accused to plead guilty.

Law minister also said the government is likely to amend Prisons Act 1894 as Prisons and Correctional Services Act 1894 to reduce case backlogs.

In March, 2012, UNDP-appointed consultant Ehsanul Hoque Samaji had submitted a report with recommendations to the law ministry for finding ways to apply ADR in dealing with criminal matters.

He worked on three issues such as fundamental obstructions relating to speedy trial, introduction of ADR to deal with compoundable offences and protection of victims and witnesses.

Ehsanul Hoque, a former metropolitan public prosecutor of Metropolitan Sessions Court in Dhaka, recommended transformation of some non-compoundable offences into compoundable ones.

In the existing law, after lodging of an FIR until submission of police report, there is no scope for an accused to be discharged, he said.

After submission of the police report, trial court has power to discharge an accused on merit. Otherwise, the court proceeds with trial in which the accused can be convicted or acquitted.

Only the compoundable offences can be compounded between the parties during the course of trial (after submission of police report and before pronouncement of judgment).

Compoundable offence includes causing simple hurt to anybody, cheating, criminal breach of trust, and theft.

Non compoundable offences such as causing death of anybody by negligent act, rush driving on the public way may be classified as compoundable offences by amending law, he said.  If victim’s family members are compensated by the accused, cases over such offences can be compromised, he added.

As per existing laws, there offences are bailable. I advised the law ministry to amend law to make the offences unbailable. 

Ehsanul Hoque recommended amending the law so that compoundable offences could be settled at the initial stages when cases are filed with police stations.

According to a report of the Law Commission, two cases — one relating to family matters and the other over property disputes —were settled through ADR during a period from 2005 to 2009.

The report said, “The rate of disposal of cases through ADR is below 0.5 percent on average in respect of the total cases in five years. Only in 2007, it sharply rose to 7.75 percent.

“Lawyers refuse to deal with civil cases through ADR fearing loss of income while litigants are also not willing to settle disputes through ADR they rely more on the advices of their lawyers than that of judges,” the report said.