Disputes are as old as human existence backed up by human civilization in the earth. The mechanism for resolution of disputes can be traced back and varied to judicial dispute resolution (JDR) and alternative dispute resolution (ADR). JDR format of dispute or conflict resolution is basically adversarial within the four walls of courts resulting retributive justice while ADR format is inquisitorial outside the court yards yielding restorative justice.
The philosophy behind ADR may goes to Chinese philosopher Confucius calling for ruling by virtue of harmony, of peace and of compromise not by law. Chinese people are leery of courts and of suits due to Confucianism. In line with Confucius Chinese people strongly believe that laws are the not appropriate to regulate daily life and hence should only play a secondary role reflecting ancient sayings of China i.e. `in death avoid hell and in life avoid the law courts` and also `going to court means getting a goat selling a cow`. But American and European philosophers always claim ADR is as of their origin. Truth is that ADR is originated in oriental philosophy but bloomed in western philosophy with success.
Throughout the ages, the disillusionment and frustration of people over the cost, inordinate delay in dispensation of justice through JDR looms large as a great threat to erode the fraternity, unity and confidence of people in the justice system expanding the use and scope of ADR.
Although, informal ADR is practiced as a form of Panchayet or Shalish in the Sub Continent during the 6th century or even earlier which is 1000 years ago of the British entry here in early 1600. The dimension of ADR is extended to a dozen of laws including in the Muslim Family Laws Ordinance (1961), the Customs Act (1969), the Income Tax Ordinance (1984), the Family Court Ordinance (1985), and Value Added Tax Act (1991), the Arbitration Act (2001), Artharin Adalat Ain (2003), the Conciliation of Disputes (Municipal Areas) Board Act (2004), the Village Court Act (2006), Bangladesh Labour Act (2006), the Environment Court Act (2010). The forms of ADR under these laws include negotiation, early neutral evaluation, mediation, conciliation, reconciliation and arbitration.
The use of ADR in general civil suits started under the Code of Civil Procedure (CPC) Amendment Act, 2003 with addition of Section 89A and 89B containing the provisions of mediation and arbitration and with further amendment in 2006 adding Section 89C dealing with mediation at Appellate stage. Under the above laws ADR in the country are voluntary and may be court annexed depending on parties. But in 2012, the government has amended the CPC again making out-of-court settlement of lawsuits mandatory.
However, in criminal cases ADR is not well recognized in the country but Section 345 of the Code of Criminal Procedure, 1898 provides for in-built provisions for compounding of offences but without plea bargaining.
Nonetheless, The evolution and growth of environmental ADR are comparatively not that much older while these disputes are different and diversified as well as their impacts go beyond the disputant parties, often transcends national boundaries. On the other hand, many environmental statutes expressly require elaborate procedural safeguards because speedy and final resolution of environmental problems may not always be in society’s best interest leaving no room for compromise. Considering far reaching consequences, environmental concerns demand cautious approach and care for the peaceful settlement for worthy human existence now and in future.
Development of environmental laws in Bangladesh began after 1970s but the country shifted its environmental regime from pollution control to environmental protection in mid 1990s. As a major development, Bangladesh Environment Conservation Act (BECA) was enacted in 1995 coupled with Environment Conservation Rules of 1997. In an amendment of the BECA in 2002, it was given an overriding effect over all environmental laws. To make these laws judicially workable, the Environment Court Act (ECA), 2000 was passed and the same has been replaced by a new ECA of 2010. In a latest venture a new ECA of 2010 has been made with ADR provisions which sound good but practically unattainable. Under the new ECA, 2010, the government pledges to set up special Environment Court in each district.
In fact, Bangladesh is not lagging behind in respect of availability of environmental norms, statutes and courts but lacking initiatives concerning sustainable environmental governance and justice because of weak implementation of around 180 existing statutes on environment.
Now days, ADR had become a global necessity and an integral segment of practice as part of the efforts to reduce pendency of cases. It is flexible, peaceful, informal, less time consuming and cheap to yield win-win situation for both parties. The judicial dispute resolution mechanism in the country has come under a great stress for pendency of about 2.2 million suits and lack of judges.
ADR, access to justice and the concept of rule of law are not incompatible rather consistent bearing same spirit and attaining peace and harmony among the people and society to heal the wounds of undue delay in justice delivery system as well turning conflict into collaboration.
Many countries in conformity with own local conditions have so far introduced and practiced various forms of ADR in all cases including environmental ones in the format of Environmental Dispute Resolution (EDR) or Environmental Conflict Resolution (ECR) with stupendous success. The use of such mechanisms has been used extensively in the US and Canada for several decades starting in the 1970s. In case of Australia it started in early 1990s but blossomed very rapidly. Ultimately, the dominating regime of ADR in USA started after the specialized Alternative Dispute Resolution Act (ADR) of 1998.
In USA and Canada, around 80% to 90% civil cases are resolved at pre-trial stage through ADR. In Germany, the history of environmental mediation started a little earlier in 1980s whereas in UK, Australia and New Zealand ADR in the civil justice system including environmental issues got a momentum during 1990s.
In South Africa, environmental mediation in South Africa was initiated under the National Environmental Management Act, in 1998 but in India, Pakistan, Sri Lanka and Nepal are without direct provision of ADR or EDR.
The recent Law Commission Recommendation Report underscored the need for expanding the purview of ADR in both civil and criminal cases with adoption of National ADR Policy along with a training institute for the same. However, lawyers, judges and litigants in Bangladesh and their mindsets are dead against ADR and especially lawyers consider ADR as a big blow to their legal profession. There are no specific guidelines regarding fees of mediators, conciliators or arbitrators triggering the lawyers to take their hard stand favouring litigation.
Following the developed countries practices of environmental ADR, Bangladesh has also introduced this mechanism of mediation in the ECA, 2010. But this embedded mediation provision is subject to prior approval and satisfaction of the Director General (DG), Department of Environment (DoE). It is pertinent to mention that the previous Environment Court Act, 2000 was repealed due to its failures to cope up with environmental disputes.
The provision of mediation under section 18 of the ECA, 2010 in line with some provisions of Bangladesh Environment Conservation Act (BECA), 1995 is unused and there is no data of success of this hybrid mechanism. One of the impediments of mediation mechanism in ECA, 2010 is the inclusion of a condition of deposit of TK 50,000 to the Office of DG, DoE and compliance of the order of the DG or his empowered agent before availing this opportunity. According to new ECA, 2010 government will establish Environment Court and Special Magistrate Courts in each district of the country but after lapse of two years no such attempt is visible in any district except in Dhaka, Chittagong and Sylhet reflecting poor condition of environmental justice. Though, ADR tries to reach micro levels of disputes embodying the spirit of law and keeping justice alive.
The success of mediation in family court in Bangladesh has created an avenue for other courts including the environmental ones to launch the mechanism way for easy access to justice. Environmental ADR is a bit risky but it may be a creative and cutting edge technique if it is applied eloquently. So, inclusion of ADR in ECA, 2010 is a good gesture but materialization of its spirit is more important for the present and future generation for expediting their efforts towards environmental protection and conservation avoiding litigation as zero sum game.
The Writer is a Senior Lecturer, Department of Law and Justice, Southeast University, Dhaka.
