Shalish

Shalish social system for informal adjudication of petty disputes both civil and criminal, by local notables, such as matbars (leaders) or shalishkars (adjudicators). Two types of adjudication have been in place in rural Bangladesh from days immenorial, These were shalish and the extension of the state's judicial arm into the rural areas through specific legislation. Normally, the process of a particular shalish starts with interrogating the disputants to ascertain the facts. Then the shalishkars offer their solution and seek the opinions of the disputants before; finally, they come to a decision. Although this procedure is found to be uniform throughout the country, there are local variations depending on local customs and tradition. Shalish is supposed to lead to a conciliation between the contesting parties. But in the context of Bangladesh's rural social structure, shalish seems to have more often than not been used as an appendage of the existing rural power structure, sometimes, of religious bigotry.

The panchayet system in ancient Northern India and elsewhere in the subcontinent, including Bengal, was the lowest tier of local government which also functioned somewhat as a court having jurisdiction over members of different castes and occupations belonging to the same village and township. The initial development of the pachanyets was a spontaneous phenomenon to meet the social needs, and they were quite independent in their working. Though the kings, or the rulers named otherwise, are reported to have some role in helping these panchayets to get organised at the formative stage, the former seldom interfered with their working. The panchayet had jurisdiction over almost every type of dispute arising in the village community. They decided both civil and criminal cases, and their powers were not ordinarily bound within any financial limit. The Muslim rulers later constituted their own system of judicature which was at variance with the traditional system, but the existing village panchayet was virtually kept untouched. However, the jurisdiction and authority of panchayets suffered decline with the establishment of formal courts for adjudicating civil and criminal cases during the British rule in India. The new land system introduced by the British also adversely affected the panchayet justice system. Yet, during the British period, the panchayet justice arrangement was never specifically singled out for abrogation, and rather its usefulness was recognised unofficially.

Some historians believe that the village panchayet was either non-existent or very weak in the region where Bangladesh is now located. Hence a highly organised shalish system was unlikely to have operated here at any period of time. The local mediation during the early British period in this part of the subcontinent seems to have comprised adjudication of (i) petty disputes relating to social matters mostly through neighbourhood shalish; and (ii) land related and inter-neighbourhood or inter-village disputes through the zamindar or his agents. Later, as population increased and neighbourhoods expanded from villages, there was both neighbourhood and village-based adjudication. Also, with the strength of the zamindari system eroding over time and the growth of the formal courts, adjudication by zamindars or their officials in the rural areas gradually became defunct. In other words, shalish in Bengal villages seems unlikely to have been associated with a well-developed rural local government system. Whatever existed here was highly informal in nature, dictated by the practical situation prevailing at the grassroots level.

It was in this institutional vacuum that the British colonial rulers initiated a move to set up village based courts and benches under the Village Self Government Act of 1919. These courts and benches were to have responsibility to deal with petty offences and disputes at the village levels under the overall supervision of the elected local functionaries (chairmen) of the village based local bodies, ie, the union boards formed under the same Act. In 1961, the government of Pakistan promulgated two ordinances, namely the Muslim Family Law Ordinance and the Conciliation Courts Ordinance, under which the village courts and benches were also made to deal with minor offences including those related to marriage, polygamy, maintenance, child marriage, rights and inheritance. In 1976, the government of Bangladesh constituted village courts in all the unions to settle minor criminal and civil disputes. The main objective of the village courts was not to determine right and wrong and punish the wrongdoers but to find an amicable settlement of the disputes. Unfortunately however, lack of clear ideas, corrupt practices, non-cooperation among the local government functionaries and the lack of adequate powers in the hands of the local bodies continued to hinder the working of the village courts and benches since their inception.

The incidence of localised disputes and altercations continued to increase as large masses of people and communities within the village structure, in the region where Bangladesh is located, were increasingly being cramped into small areas and required to share limited resources. Consequently, the village identity took a firmer shape on the one hand, and the number of neighbourhoods increased on the other. The village based shalish also emerged either as an addition to or a replacement of the neighbourhood shalish. In this phase, inter-village shalish was also conducted. However, where factional rivalries went beyond control, the village and neighbourhood level shalish broke down and shalish took place at the union level under the leadership of the chairmen/members of village based local bodies, the union parishads. But this was to be carried out not through the formal village court in operation but the informal shalish coming down from tradition. This happened because the formal court was restrictive in two specific ways, ie, in the procedure to be followed and in the degree of punishment and its implementation. Moreover, anything formal could be challenged in the higher courts. So, what rural Bangladesh has at the ground level is (i) a formal court at the union level which operates at a low key, and (ii) the traditional and informal shalish which functions at one or more levels, ie, neighbourhood, village or union, depending on the ground situation.

However, recent studies reveal that the village-based shalish has developed serious functional complications owing to intense factional infighting and rivalries in the villages; localised petty disputes have increasingly been referred to the union parishad (UP) chairmen/members for mediation, but outside the formal village courts. These studies also indicate widespread corruption in the informal shalish conducted by the local government or UP functionaries, including improper attention that is being paid to relevant laws or accepted principles of justice. The pressure of the rich, influence of money or special favour, fear of the local terrorists, and domination of orthodox religious views are identified to be the main bottlenecks responsible for unfairness in shalish. The last one among these seems to be particularly prominent in certain areas of the country where shalish has sometimes acted as an instrument for carrying out the perverse fatwa (mostly directed against women) issued and propagated by some local religious leaders. Yet, there are many areas in the country where village level shalish seems to have been operative, for it has the advantage of being prompt to assemble, allow the parties to freely express their opinions, and to provide quick justice.

When a petty dispute is resolved through shalish, the resolution is often a financial settlement. Many offences originate from land disputes and from family disputes which lend themselves more easily to amicable resolutions. Although in petty criminal matters it is preferable to avoid a vindictive approach and seek an approach that resolves the dispute, the predominant tendency is to seek litigation. But litigation ultimately does not result in resolution, and only encourages further divisiveness and enmity among the disputants in particular, and within the community in general.

In Bangladesh's present-day context, anyone interested in the continuation of shalish finds it a real challenge to revive and mould the traditional shalish on the right lines, reflecting the spirit and aspiration of the people. But due to persistent structural-functional problems and the lack of peace and amity within the rural social structure, it seems very difficult to bring about equitable resolution between the conflicting parties. However, one positive development that seems to have been emerging is that some Non-Government Organisations (NGOs) have in recent years come forward to refashion the traditional shalish system. They are conscious of the prime need to ensure neutrality, non-imposition and attaining a 'win-win situation' in the mediation process. As part of a priority measure, training for the shalishkars (mostly volunteers) on the legal issues and mediation processes has been introduced by them with a view to overcoming the limitations of the traditional shalish. [Fazlul Huq]

Bibliography Kamal Siddiqui, 'In Quest of Justice at the Grass Roots', Journal of Asiatic Society of Bangladesh, Vol. 43, No.1, 1998; Fazlul Huq, Towards' a Local Justice System for the Poor, Dhaka, 1998.