The culture of shalish as a non-state justice system has been rooted deeply in South Asia and still reckoned as a felicitated dispute resolution mechanism in the rural areas of Bangladesh.
Basically, it denotes the practice of assembling the local elders and the disputants to come up with a compromising solution. It has no fixed dimension and is mostly facilitated by influential and powerful persons like UP chairman, commissioner, etc. who are popularly known as shalishkers.
The judicial system of Bangladesh has been unable to grant easy access to underprivileged communities. As our system is adversarial, complex, time-consuming, and costly, the poor and disadvantaged peoples do not willingly proceed with the court proceeding, rather they choose the path of shalish under compulsion.
Although shalish gives remote communities an easy access to justice, there are lots of shortcomings and changes that need to be initiated to make this system more dynamic.
The power relation between the shalishkers and disputants plays a vital and decisive role. Generally, the shalishkers push the disputant parties to come up with a compromising solution. The disputants need to assure their consent to the given decision by signing into an agreement.
Here, the powerful disputant party may refuse to comply. But the poor and backward disputants cannot oppugn the decision in fear of wrath from the influential.
Often, the disputant parties do not disclose the key issues in shalish. There may be multiple reasons behind that. Such as, it is not unlikely in the matrimonial cases that the woman won't hesitate and feel ashamed to utter her views in public. In this regard, private meetings are not taken into account to hear the untold issues.
The probability of coming to a rational solution is quite low under this circumstance. Furthermore, it will be wise to hold the matrimonial cases only with the immediate and affected family members.
The non-representation of women as shalishker in a shalish meeting is a negative factor. Mostly the male persons remain dominant in times of giving decisions. Particularly, this is a common phenomenon in the village areas. The maternal issues are fathomed well by the female persons than the males. So, they should be given more priority in delivering the decisions.
The rural shalish policies cannot control the interruptions created by third parties. Women are expounded as the most vulnerable and often their self-respect is at stake. If any third party gives rise to any sensitive or scandalous issues, the shalishkers do not try to stop them from doing so.
What makes the shalish system weaker is that no parties are bound to follow the decision and the most important thing is it has no evidentiary value before a formal adjudicative court of law.
So, the decision of shalish must allude to a written document that will carry evidential value. Besides, a systemic structurisation of this informal process must be installed. Every step must be fulfilled gradually and then the final decision will be uttered.
Training and campaigns must be inaugurated to enable the individuals in understanding and appreciating the shalish process. The social elites will be there who will be taught the concept of general principles of law. they must be inspired to adhere to judicial norms and values through training.
Although the shalish system provides easy access to justice to the disadvantaged communities, the punishments are not regulated by any law or ordinance of the land. So, the shalishkers sometimes do not hesitate to impose draconian punishments at will.
The consequences of an unfairly compromised dispute affect not only the disputant but also the entire family. They also become sufferers. Often the power disparity is forgotten and forgiven.
In this backdrop, NGO-led shalish system must be amplified which has already gained appreciation due to participation of women, and effectiveness in mitigating corruption and class biases. In consequence, the local leaders will be discouraged from extorting the pennies of the disputants.
Nadim Zawad Akil is a student of Law at North South University (NSU).
Disclaimer: The views and opinions expressed in this article are those of the authors and do not necessarily reflect the opinions and views of The Business Standard.