On restructuring village courts
Our Judiciary is in a mess of about 4 million cases. Higher and lower Courts are spiralled with misery and irregularities. Hassel of the plaintiffs is common here. Apart from these, the name of a simple judicial system is 'village court'. The rural arbitration system existed for ages in this part of the world. They were officially recognized by an ordinance in 1976 and the arbitration process was named as 'Village Court'. In 2006, the village court got legal basis by Village Court Act, 2006. The act was amended in 2013. Following this, village court rules were issued in 2016.
According to the village court act, a 'village court' consists of the five members. They are the Chairman of the union council and two representatives from both the plaintiff and the defendant. One of the two judges nominated by both parties must be a member of the Union Council. The Chairman of the Union Parishad acted as the Chairman of the Village Court.
If for any reason the Chairman of the Union Parishad is unable to perform the duties of the Chairman of the Village Court or his impartiality is questioned, the Upazila Nirbahi Officer nominates another member of the Union Parishad (whom no party has nominated) as Chairman of the Village Court. If a party cannot nominate a member of the Union Parishad due to bias, another person may be made a member of the village court with the permission of the Chairman.
However, some boundaries of village courts have also been drawn in the law. For example, if the accused has been convicted by a higher court before or, if there is a case of usurpation of property of a minor or, if there is an arbitration in the existing dispute or, if the government or the local authority or a government employee is on the side of the village court, then village court can not try these cases. Again, the village court cannot imprison anyone. According to Section 245 of the Criminal Procedure Code, village courts cannot prosecute serious crimes such as rape, murder, acid throwing, torture of women, kidnapping and robbery.
Funded by the United Nations Development Program (UNDP), the European Union (EU) and the Government of Bangladesh, the Local Government Department (LGD) implemented a pilot project called 'Activating Village Courts in Bangladesh' from 2009-2015. This pilot project was first implemented in 351 unions of 57 upazilas of 14 districts. Based on the success of the project, the Bangladesh Village Court Activation (Phase II) project started in January 2016 and is still ongoing. At present, village courts are functioning in 1,060 unions in 127 upazilas of 26 districts of 6 divisions.
However, even after the introduction of village courts, the number of cases in the lower courts has not decreased. On the contrary, it is gradually increasing. As the court conducted by the local representatives, there are allegations of coercion against the relatively poor community. This problem has to be solved. Currently, Village Courts are not under the supervision of Bangladesh Judicial Service Commission (BJSC). But for two reasons, the activities of the village courts demand the administrative jurisdiction and supervision of the Supreme Court and the Chief Justice.
First of all, village courts exercise judicial power in Bangladesh. Second of all, any order or judgment passed by the village court has to be appealed to the Senior Assistant Judge and the Senior Judicial Magistrate. So the village court is an integral part of the lower courts of Bangladesh. Its supervision should be vested in the District and Sessions Judges.
On the other hand, the union council chairman and members were elected by party mandates. It is not necessary for them to have legal knowledge as a condition to be a candidate for the post of Chairman and Member of the Union council. But how did they become judges of the court after being elected? This irregularity leads to many miscarriages of justice. Chairmans and members can take part in arbitration and ADR with the consent of both the parties, but they cannot sit in court and try any cases.
Apart from that, the Union council is a part of the 'Local government' department, which is a matter for the "Administrative" part of the constitution. Article 22 of the constitution clearly separates the administration and the judiciary. After the historic verdict of "Secretary, Ministry of Finance v Masdar Hossain (1999)" Case in 2007, this provision is now fully effective in the country. So, conducting of the court by the elected representatives violates the constitution, the criminal and civil law of the country. Simultaneously, the principles followed are the long process.
The government is encouraging alternative dispute resolution (ADR) for reducing the complexity of judicial courts and high court cases. So, the traditional arbitration system needs to be restructured in the rural areas. Even under the existing law, the jurisdiction of the village court does not allow the formal disposal of most cases in this village court. These are settled out of court. Many times in these resolutions, the influential parties force their views on the weaker parties. Thus, the culture of impunity in rural areas is gaining.
Therefore, instead of increasing the jurisdiction and power of the village courts, the structure should be revised. Under the leadership of UNO, the officials of the upazila can make a list of notable persons for each union and send the list to the district judges. The District Judge will, if necessary, inquire from the officer-in-charge (investigation) of the police station about the listed persons. Thus, on the recommendation of the district judge, the chief judge of the village court and four others may be appointed in consultation with him.
As a result, the court will be run by the acceptable persons instead of the local representatives. In addition, as a permanent solution, a Senior Assistant Judge (Criminal and Civil) Court can be established at the Upazila level while maintaining a strong arbitration system at the village level. Then, Connection between the Upazila Court and the village arbitration system can be made through the Union Parishad. BJSC should appoint sufficient judges for these courts.
Effective village courts can play a significant role in reducing the pressure of the judicial courts. Therefore, it is necessary to take initiative to reform the existing structure of village courts in Bangladesh.
The writer is a student of LLB (Honours), Department of Law, University of Rajshahi