Access to Justice for All through Arbitration

Snap Shot: Duration : Unlimited; Funded by : Own Fund from Micro Credit Income as Social Responsibility ; Geographical Location : Comilla District

Development Contest: The Universal Declaration of Human Rights states, “Everyone has the right to recognition everywhere as a person before the law.  This right is, however, only realisable if everyone has access to justice.  Human rights norms and standards dictate that all persons, irrespective of any characteristic that may define their location or standing in society, are equal before the law, i.e. all are equal before the courts and tribunals and enjoy certain procedural guarantees in civil and criminal trials. Equality before the courts means, in particular, that all persons must be granted a right of equal access to an independent and impartial court or tribunal for the determination of civil disputes or criminal charges without discrimination.  The most important procedural guarantee in both civil and criminal proceedings is the right to a fair hearing. Access to justice refers to people’s ability to use justice services.  Equal access means that such ability is not limited or restricted to certain social classes or groups.  It becomes an issue when that access is restricted, in particular, for the poor, women, children, indigenous peoples or other marginalised or disadvantaged groups.  The development challenge is to ensure equitable access to justice, which is not differentiated by gender, ethnicity, political affiliation, religious belief, social or economic class, age, or physical incapacity or any other marker of identity.  Equal access to justice also includes the prompt and impartial response of the justice institutions.

Various types of violence are happened in Bangladesh including Comilla everyday lives of women such as rape, fatwa, wife beating, sexual harassment, family violence, Dowry, child trafficking, women trafficking, acid throwing, burn, ransom. The Upazilas under the proposed project is the high risk area of violence against women. Always the women are the victim of fatwa by the Mullahs.  In ever cases violence against women somehow the Mullahs becomes involved and they arrange Shalish (An informal, traditional system of mediation used to settle marital and land disputes outside the court). In most of the shalish (An informal, traditional system of mediation used to settle marital and land disputes outside the court) the women are not getting the right justice. In the proposed working area the victim of violence has been totally misconceived and is used by half educated village mullahs (clerics) who actually are not scholars in Islam. This Mullah’s through the informal village justice system (shalish), an informal, traditional system of mediation used to settle marital and land disputes outside the court) punishes women for so-called anti-social or immoral activities. In almost all the cases women are brought before the shalish (An informal, traditional system of mediation used to settle marital and land disputes outside the court) simply for their involvement in extra marital affairs, marrying a man from different religion, giving birth to a child before marriage, complications due to oral divorce pronounced to a woman by her husband and so on. Although these punishments are not legal, because the Mullah’s exerts considerable autonomy and power in the rural areas, the punishments are generally carried out against the helpless women. People for lack of knowledge about the law and religion, poor education and absence of social awareness are the key factors, which allow fatwa to be issues. Punishment awarded by a fatwa is variable but include awarding hilla (Intervening marriage often imposed in cases where the husband orally divorces the wife repents later and wants to take her back. Although in practice in some places, it has no legal basis in law in Bangladesh.) to another man, punishing with lashes, social boycott, stoning, divorce, and physical violence.

Why Arbitration: Arbitration is an alternative to resolving disputes in court.  The arbitration process allows the parties to select an individual or several individuals with a specialized expertise in the subject matter of the dispute to listen to the evidence and render a binding decision. Usually, an arbitration panel consists of three members, called a tripartite panel, one of which is designated as the chairperson of the panel or chief arbitrator.  In civil litigation a judge is randomly assigned to hear a particular case and may not have the necessary substantive or technical expertise to appreciate fully the intricacies of legal counsel’s arguments or have a comprehensive knowledge of the construction matters in dispute.  Also, the large volume of court caseloads sometimes results in substantial delays in processing individual cases.  Many judges are mandating mediation and/or arbitration prior to the beginning of actual court proceedings with the expectation that the case will be settled and the court litigation process will be avoided. If the parties to an agreement to arbitrate agree to a method for appointing an arbitrator, that method must be followed unless the method fails.  If the parties have not agreed on a method, the agreed method fails or an arbitrator appointed fails or is unable to act and a successor has not been appointed, the court, on motion of a party to the arbitration proceeding, shall appoint the arbitrator.  An arbitrator so appointed has all the powers of an arbitrator designated in the agreement to arbitrate or appointed pursuant to the agreed method. An arbitrator may conduct arbitration in such manner as the arbitrator considers appropriate for a fair and expeditious disposition of the proceeding.  The authority conferred upon the arbitrator includes the power to hold conferences with the parties to the arbitration proceeding before the hearing and, among other matters, determine the admissibility, relevance, materiality and weight of any evidence.