Professional Documents
Culture Documents
SAILS Project
SAILS Project
Kiran.C.V
Participant of the Course on ADR, SAILS 2010
Guided by:
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TABLE OF CONTENTS
1. Introduction
2. Objective
3. Methodology
A. Analysis
b. Presentation of Findings
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
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
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.
B. Analysis
d. Presentation of Findings
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(i). Process /procedure of Adjudication
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.
• 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
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.
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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.
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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.
Table - A
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cases (for Ex; varies
from Taka 50 to few
thousands of Taka) as
per the Law
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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.
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;
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