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A legal conundrum?

  • Published at 11:19 pm July 5th, 2019
GAVEL
BIGSTOCK

Exploring ADR processes in criminal litigation

Though alternative dispute resolution (ADR) mechanisms are often termed as both effective and popular modes of settlement of civil suits, the wider scope of ADR processes in a criminal justice context is still a highly contentious issue. 

The judges of Bangladesh are generally reluctant to facilitate the victim and the offender to settle their cases, rather, they tend to deliver sentences to the offender upon conviction.

There is no denying that various informal justice mechanisms, including mediation, arbitration, etc have long played or arguably still play a major role in amicably settling both civil and criminal disputes in Bangladesh.

 In fact, owing to societal distaste for cumbersome courts and collective feelings of settling their disputes by themselves, the rural society has a long tradition of handling most disputes, both civil and criminal, in the form of compromise. 

Over the years, restorative justice paradigms in the administration of criminal justice have gained currency in many jurisdictions. Some elements of restorative justice, mostly in rudimentary form, may also be sporadically found in the legal regime of Bangladesh. 

For instance, compounding of offenses, compensation to the victim, summary trial, village court, etc are various ADR processes stated in law. 

However, apart from the statutory scheme of “compounding of offense” in petty criminal cases along with the episodic victim protection, the extent and practice of ADR in criminal proceedings is largely elusive in Bangladesh.

Obviously, the composition of offenses is one of the most effective methods of checking the recurrence of crime, as compounding of offenses reduces the chances of retaliation or revenge.

The current legal regime only allows some innocuous offenses to be compromised. 

In particular, tabular statement of the offenses drawn in Schedule II of the Code of Criminal Procedure 1898 make a picture of offenses that are compoundable. 

There is a general consensus among the lawyers, the judges, and educators that more offenses should be included in the list of compoundable offenses. 

A practical challenge is that in an adversarial system like ours, ad hoc prosecution and the passive judge take little interest to facilitate the compounding of offenses that was legally contemplated in 1898. 

The role of defense counsel and the ignorance of the parties are also contributing factors for poor application of compromise provisions in criminal proceedings. The absence of provision of plea bargain is also a major drawback in the system.

Though some commentators are in favour of making all offenses compoundable, I am of the view that grave offenses, including murder, rape, dacoity, violation of modesty of women, and child abuse should not be listed in the category of compoundable offense. 

Some practising lawyers are of the view that it is not a bad idea for the victim to receive adequate financial compensation from the accused in place of dilatory sessions proceedings that mostly end in acquittal of the offender. 

As far as the legal system of Bangladesh is concerned, most of the criminal laws, procedures, institutions, and principles that evolved during the British period (1757-1947) still govern the functioning of the criminal justice system. 

Skewing the cynical issues attached with ADR in criminal litigation, it can be logically argued why much-vaunted advantages of ADR cannot be transplanted in the administration of criminal justice with appropriate qualifications and reservations. 

Viewing the legal landscape through a restorative justice lens, it is hoped that criminal ADR mechanisms would essentially answer the philosophical objections made against settlement of the offenses in an overtly adversarial system like ours. 

Given that the mounting backlog of criminal cases, long practice of informal compromise of criminal cases, explicit statutory provisions for compounding of offenses, and encouraging precedent of Supreme Court in favour of compromise (Zoynal and others v Md Rustam Ali and others[1984]36 DLR 242 (AD)), there is no alternative to streamline the criminal ADR movement in Bangladesh. 

It is hoped that it will not only lessen the sufferings, time and costs of the victim and accused, it will also reinvigorate the social harmony that is included as an essential idea of justice.

Accordingly, I would argue that enlarging the statutory scope of compromise, inserting plea bargain provision, following mandatory stage of victim-offender conference, reformulating the compensation scheme, re-shaping summary trial, reactivating village courts, etc may be some major reforms that can accelerate criminal ADR processes in Bangladesh.  

However, the proposed reforms encompassing a holistic review and practice of above ADR processes would obviously require an evaluative or mini-adjudicatory conciliator-type role of the presiding judge. A caveat is that criminal ADR in no way encourages the extra-judicial punishments mostly committed against disenfranchized sections, including women and the poor by the spurious society leaders in the name of religion and society. 

Another concern is that in principle, ADR processes should not be applicable for grave offenses, including murder, rape, robbery, and embezzlement of public money. 

Hussain MF Bari is Member (Judicial), 2nd Court of Settlement, Dhaka.