VISIT TO MADARAIPUR on June 16th to 19th, 2010

A FILED RESEARCH REPORT

Prepared and Submitted by:

Kiran.C.V
Participant of the Course on ADR, SAILS 2010

Guided by:

Dr. Yubaraj Sangroula

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 TABLE OF CONTENTS

1. Introduction

2. Objective

3. Methodology

4. Organization of the Study

A. Analysis

a. Approach adopted for analysis

b. Presentation of Findings

(i). Process /procedure of Adjudication

(ii). Process/procedure of Shalish

(a). Strengths of Shalish system

(b). Weaknesses of Shalish

(iii). Comparative analysis of Process / procedure of Shalish and adjudication.

5. Conclusion

6. Recommendation

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How far Procedure applied by Shalish system can be compared with
procedure applied by Adjudication

1. Introduction

Before British invasion and establishment of colonial judicial system in

South Asian Region, traditionally the people of South Asia were resolving their
disputes by way of Panchayath in India and Shalish in Bangladesh. Panchayath /
Shalish as an adjudication process are rooted in the history since time immemorial
and are still in existence. India has had long history of Panchayth dating back to
several centuries before Christ. Similarly shalish is also an age-old practice in
Bangladesh.

The word Shalish in Arabic means Arbitration and in Persian means

mediation. But traditionally the Shalish is an informal adjudication process of
resolving the conflict between individuals regarding the family, lineage, and land
related disputes, unlawful activities, ill-feelings, non-cooperation, or other things
etc., which regulated the actions and behavior of the Peoples in the society.

The Procedure of shalish can be broadly classified into two forms that is
formal and informal process. In a Formal Shalish the adjudication powers are vested
with the Union Parishads and Chairmen of the Union parishads act as the chairmen
of the Arbitration Councils, On the other hand, the informal shalish is based on
convention, customs, and cultural of the local people.

The informal Shalish with its pragmatic change from its traditional process is
mostly accepted in the rural parts of the Bangladesh as the same was far informal
and was vastly respected and accepted in the society. The adjudication or verdict or
decision of a shalish as more social obligation than the legal enforcement, but most
of the time the people abide by it because they have to live in the same society.
Normally the Shalishdar (Board of Shalish) are elected from the respective society
who has a good standing and accepted in the society, it also allows the disputant

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parties to nominate their respective representatives as Shalishdar’s. The procedure /
Process of Shalish is an process which resolves a dispute and restores the moral
order of the society, the adjudication process is more informal having the elements
of adversaries, identification of conflict, background of the conflict, evaluation of
witness and evidence, negotiating among disputants, mediating among disputants
and passing of Arbitral award or adjudication by way of decision.

2. Objective

The objective of this paper is more concentrated on the process / procedure

of Shalish and how for it is relatively nearer to the Adjudication process, further in
this paper an attempt are made to understand the simplicity of resolving the disputes
in comparison with the existing procedures of the adjudication in the courts
established by state and an attempt are also made to identify the strength and
weakness of the shalish system in resolving the disputes.

3. Methodology

In this paper the Analytical analysis of the literature and the observation
method of the proceedings of shalish along with the Interview of the Expertise in the
System and collection of data are followed and said data are analysed with the
descriptive and comparative methodology along with applying the field knowledge
of the author.

4. Organization of the Study

B. Analysis

c. Approach adopted for analysis

In this report the author used the methodology of Analytical Analysis,

descriptive, comparative analysis and Explorative method for writing this report.

d. Presentation of Findings

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(i). Process /procedure of Adjudication

Classically adjudication is a legal process structured by statute for the

resolution of disputes, wherein a State appointed Judge appreciate or review the
evidence and hear the arguments including legal positions by way of case laws
setfoth by the parties or litigants and comes to a decision that determines the rights
and obligation of the parties.

Procedure of Adjudication in the sub-continent of South Asia is a process of

dispute resolution that take place in the Courts established by the state, the courts
established by State follows the stringent and more complex procedural and
substantial laws enacted by the State Legislature. The court strictly follows the
Laws, rules and the interpretation rendered by the parties to such Laws and rules
including the facts proved within the ambit of law, the human emotions and feelings
have no role to play in deciding the dispute, people go to the courts to obtain a
favorable verdict and also to have a sensitivity of success over the other, the results
exceed the actual gains made out of the resolution of the problem or dispute in the
minds of the succeeding party. It is a win-lose game.

This process often results in the win lose situation of the parties or
disputants, leaving behind the permanent scars on the mind of the losing party, and it
may end in making the disputes endemic and long lasting rather than resolving the
problem. This often may lead to sense of taking revenge by the losing party
whenever party or disputant gets a chance.

In an Adjudication procedure/process the parties encounter various complexities

in the course of their dispute resolution. Some of the complexities are given below;

• Time consuming
• Parties or disputants spend lot of money and energy
• Stringent and Complex procedures
• Win-lose situation
• Sometimes arouse further conflict

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 • No reconciliation process
• Probability of deception
• Most of the time the parties are entirely dependent on lawyers

(ii). Process/procedure of Shalish

In the rural parts of Bangladesh the community has taken the foremost role
in resolving the disputes both civil and criminal by way of far informal system
popularly known as Shalish, the shalish are presided over by the good standing
locals, local political heads, such as matbars (leaders) or shalishkars (adjudicators).
The reformed structure of shalish is initiated by filing of compliant from the
aggrieved party. After receipt of the complaint the Shalish Board calls upon the
opposite party and hearing dates are fixed for resolving the disputes. The procedure
of Shalish starts with allowing parties to narrate their facts and the Shalishkars
question/ interrogate the disputants to ascertain the true facts. Further the disputants
are allowed to lead witness or evidence to substantiate their facts, after patience
hearing of the disputants and the witnesses the shalishkars offer their solutions, and
seek the opinions of the disputants before; finally, they come to a decision. See Box
1

Box 1
Brief facts of the case:
A girl of 15 years old with 1½ months old child is the complainant. Her husband is
the opposite party. The girl has come before the Salishkars seeking resolution of her
family dispute. Wherein her husband was torturing her for dowry. He also beats her
often. According to the wife, she sold her wedding jewels worth 10,000 Tk. for the
child’s welfare. The wife also stated that the husband was beating her mother when
she refused to give some money to him. The wife was residing in her maternal home
and is willing to go back to her husband’s house provided she is treated properly and
no dowry is demanded by him and also He should also take care of the child and
provide for its maintenance. The husband admitted that he asked for money; but not
as a dowry, instead he wanted to start a business with that money and out of the
profit he was planning to return the money to his wife’s mother. After his marriage
he had separated himself from his own family and this was the reason why he had to
ask the wife’s mother for money. The husband accused the wife of having illicit

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relationship with another person in her earlier days and doubted the legitimacy of the
child.
Formulating the solution and Evaluation of True facts:
After the questioning / interrogation by the Salishkars the husband admits that the
child was his own and has no further disputes in this regard. Further the mother of
the husband was examined and the fact that the husband was addicted to the narcotic
was revealed and further the girls mother was also examined after ascertaining the
fact the shalishkars proposed to the to not to inflict any torture on his wife or her
mother and to restore the conjugal life with the wife. At one point of time, the lady
member of the Shalish advised the husband of the importance of family and the
responsibilities he had towards his family.

Decision of the Shalishkars

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

The shalishkars adopt a mixture process of Formal and informal procedure in

hearing the disputes and often the process changes as per complexity of the cases
like if the matter demands they adopt the in-camera proceedings See Box 2 and if it
requires to know the legal position or verification of the documents and the physical
in person verification of the disputed component are also followed in the
adjudication See box 3
Box 2 Box 3

Brief facts; Brief facts:

One person named A died leaving
In this case the compliant was the behind two daughters X and Y and two
Husband Narration by the Husband sons B and C. The land of A was not
alleging that his wife without showing partitioned. X gifted her portion to B,
any reasonable ground residing in her also sold out that land to C. Both B and
C possess the land jointly. Now, B
parental home. The husband tried to take
claims that the whole portion of land of
her back but failed for the past two and the daughter X belongs to him. C urges
half years. Another complains was that that he purchased the land.
his wife before leaving for her parental
home she used to beat him. There was Process before the Shalish :
The Shalishdar examine the documents

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one incident when his in-laws also beat and tried to know the true facts .On one
him. Both the parties were present on the stage the Board found that some
hearing and the wife was asked to submit documents were missing and that’s why
they adjourned the proceeding and
her reply to the allegation and her facts
decided that within the next date they
she stated that her husband not behaves will physically verify the status of
with her properly. He often uses abusive possession by visiting the disputed land.
language towards her. Further she The proceeding was postponed for
pressed that certain things cannot be another one week.
disclosed in public and in her custom
(Hindu) marriage happens only once Conclusion
Though all the facts were not available,
Procedure adopted by Shalish: Shalish had a conscious mind to mitigate
the dispute and thought fit after through
After hearing the parties the Shalish examination of all the records and
board allowed for the private discussion physical verification of disputed land
of the wife with the female board which could give a batter solution of
settlement of dispute.
member in a separate room and after the
discussion of the women member
knowing the complexity of the case and
maintaining the confidentiality appointed
Four trained mediators to speak to her
and mediate for the possible solution and
a time of seven days was granted for next
hearing.

The Shalish system is developed by the community and community people

take a leading role in resolving the disputes. The elements of mediation, negotiation,
and reconciliation are often used in resolving the disputes. In the Shalish the
community leaders look deep into the root cause/s in the presence of both parties,
hear to the disputants, and find a solution agreeable to the parties concerned to
maintain the peace and harmony in the society including the resolution of the
issues/disputes among parities/disputants.

(a). Strengths of Shalish system

• The parties and disputants are fully involved in resolving the dispute
• Participation of Women members are ensured in the decision making process

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 • Human right values are given more consideration
• Decision is made by the choice and concise of the parties
• The Decision are made in compliance with the law of the land and in the best
interest of societal harmony and parties/disputants.
• More flexible and democratic methods are applied in the process
• Decision are driven by Societal peace and harmony
• Decision are normally a win-win situations
(b). Weaknesses of Shalish
• Systematic procedure are not there
• Shalisdhars may be Biased at times
• Decisions are not legally binding, but driven by social obligation.
• Community’s indifference may be a factor in decision making
• Shalisdhars or Disputants may use power and influence in making decision
• Too much interference in the process by powerful people
• Parties or disputants may Fear of losing dignity and prestige
• Infrastructure and Technology advancement are less used in recording the
proceedings and keeping the records.
(iii). Comparative analysis of Process / procedure of Shalish and adjudication.

Though the Shalish System is more of an Informal adjudication method the

comparative study of the Court adjudication and Shalsih adjudication method gives
the fair idea of the relative similarity in the process. See Table A.

Table - A

Procedure / process of In the Courts Established In the Informal System of

Adjudication by State Shalish

Filing of Case / Filed written Plaint or Filing of Compliant

Compliant petition in the either oral or written no
prescribed format format prescribed

Fees Depends on nature of No fees prescribed.

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 cases (for Ex; varies
from Taka 50 to few
thousands of Taka) as
per the Law

Place of Adjudication Fixed Mobility

Appointment of Judges Appointed by State Parties have liberty to

nominate their
representatives in the
Board

Issue of Notice / Issued as per the Writes letter to all the

Summons to other procedural Laws disputant parties and the
parties CBO members

Framing of Issues As per the principals of Real differences or issues

Procedural Laws. are identified by
discussing with the
parties or disputants

Trial –Evidence / Always led in Informal discussion,

Witness accordance with the wherein the parties and
Evidence Act and the witnesses are given full
Laws applicable opportunity to say

Trial – Documentary Strict rule of Laws are Experience / Knowledge

Evidence applicable in and the local practice are
appreciating the or adopted in verifying the
admitting the documents documents.

Arguments Lengthy arguments are No Such arguments are

allowed by either of the allowed
parties

Decision Is decided by applying Parties opinion are taken

the Procedural, into consideration and

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 substantial laws and normally given by the
case laws based on the concise of the board
facts proved and members and the
evidence substantiated. parties.
Parties’ opinions are not
taken into consideration.

Achievement of the Determines the rights Determines the duties of

Decision and obligation of the the parties or win-win
parties or Win lose situation
situation

Implementation Once the decree or Normally parties abide

Order passed has to be by the decision failure of
executed in the Separate the same will result in
Execution proceedings social consequences
and legal implications rather than legal
follows. implications.

Time Frame 2 years to 20 years 10 days to 6 months

5. Conclusion

Though the adjudication by courts and the Shalish are two different systems
but they are very close in resolving the disputes. Therefore there is a possibility of
interchangeable identity. Though the ultimate goal of both the system are resolving
the dispute, wherein Shalish system emphasis more on social values, societal
harmony, agreeable to parties are followed. Further it allows the easy access and
speedy justice to the disadvantageous without any ordeal of procedural nuisance.
Though the fear of enforceability of the decisions and the influence of power and
money can intervene in the decision making process, a much structured and refined
with accountable of Shalisdars of their decisions can render justice.

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 More structured shalish with clear components of Structure of Shalishkars
Board, Their impartiality and societal standing, treating the parties/disputants on par
with the Shalishkars, recording of the proceedings and reasoned decisions will make
the system more transparent and accountable and build the utmost faith of the parties
or disputants and society.

6. Recommendation

The broad recommendations for strengthening the system of Shalish system for
rendering the justice are;

• Avoidance of political leaders and vested parties in the process of Shalish

• Systematically structuring the process of shalish and recording the same

• Judicial recognition of the shalish decision rather than the Legislative

recognition.

• Public accountability of Shalishdars

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