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Download.Pdf; Accessed on 01.11.2018 Rajshahi University Law Review ISSN 2070-9196 Vol. IX December 2018 Editor in Chief Professor Dr. Mohammad Abdul Hannan Assistant Editor Professor Dr. Sayeeda Anju Editorial Board Professor Dr. Begum Asma Siddiqua Professor Dr. M Anisur Rahman Professor Dr. M Ahsan Kabir Professor Dr. M Hashibul Alam Prodhan Professor Abu Naser Md. Wahid Professor Dr. M Abdur Rahim Mia [N.B. Editorial Board does not bear any responsibility for the views expressed by the authors in the articles published in this Journal.] University of Rajshahi Department of Law Rajshahi University Law Review is a platform for the scholars, researchers, practitioners and judges to develop their research works, philosophies and ideas. It is a yearly printed (along with online version) journal devoted to Jurisprudence, International Law, Personal Laws, Constitutional and Administrative Laws, Human Rights, Corporate Laws etc. It is a double blind peer-reviewed journal with ISSN number. Correspondence: All Manuscripts and editorial correspondence should be addressed to: The Editor in Chief Rajshahi University Law Review Department of Law University of Rajshahi Rajshahi 6205 BANGLADESH Tel: +880 721 711300 E-mail: [email protected] Published by The Department of Law, University of Rajshahi Price Tk. 200.00 (Two hundred taka) ISSN 2070-9196 Printed by Sarkar Printing, Ranibazar, Rajshahi. Ph.: 0721-770608 [ Published in December 2019 ] CONTENTS Mediation Process in the Code of Civil Procedure: Problems and 1-13 Prospects Armin Khatun Interpretation of Law of Tort by the Apex Court of Bangladesh 14-29 ATM Enamul Zahir Dr. Sayeeda Anju Spousal Privilege and the Right to Testify 30-39 Dr. Begum Asma Siddiqua Administrative Structure of Waqf Administration in Bangladesh: 40-58 Problems and Perspective Dr. Shahin Zohora Doctrine of Creamy Layer vis-à-vis the Quota System in the 59-79 Recruitment in Public Services in Bangladesh: A Lesson from India Md. Asaduzzaman Saadi Md. Shahidul Islam Role of SAARC in Protecting Human Rights in South Asia: 80-99 Towards an Effective Enforcement Mechanism Md. Moniruzzaman Rights and Realities of the Street Children in Bangladesh 100-110 Mohammad Mahmudul Hasan Legal Fragilities and Limitations of International Humanitarian 111-126 Law (IHL) in Protecting Civilians during Armed Conflict Amdadul Haque Ehteshamul Hoq S M Shahidul Islam Compatibility of the Child Marriage Restraint Act with 127-142 International Law: Towards a Hermeneutic of “Benevolent Departure” Shaila Alam Asha bvix I wkï wbh©vZb `gb AvBb 2000 Gi AccÖ‡qvM ebvg cÖ‡qvMnxbZv weZK© : GKwU 143-166 AbymÜvbx ch©v‡jvPbv Dr. Md. Abdur Rahim Mia evsjv‡`‡k wnRov‡`i AwaKvit ivRkvnx wmwU K‡c©v‡ikb GjvKvq emevmiZ wnRov‡`i 167-178 Dci GKwU mgxÿv Dr. Md. Rafiqul Islam Notes for Contributors Rajshahi University Law Review is published by the Department of Law, University of Rajshahi usually in December every year. Scholarly articles relating to law and society and book reviews are considered for publication in the Journal. The author(s) are requested to send two hard copies of manuscript to the correspondence address, and a copy by e-mail attachment to: [email protected]. Each manuscript must be accompanied by a statement (annexed with call for papers) that the manuscript has not been published elsewhere, that it has not been submitted simultaneously for publication elsewhere. Authors are responsible for obtaining permission to reproduce copyrighted material from other sources and are required to sign an agreement for the transfer of copyright. All accepted manuscripts will become the property of the journal. Manuscripts must not be more than 6000 words inclusive of abstract, reference pages, illustrations, acknowledgements, tables and figure. The abstract should not exceed 250 words. A short biography of each author has also to be included along with the manuscript. It is a peer-reviewed journal; the review board will have the right of reviewing the manuscripts with regard to both language and format. Reference Style Authors are instructed to use Oxford University Standard for the Citation of Legal Authorities (OSCOLA). Link: http://www.citethisforme.com/uk/referencing-generator/oscola The opinions, analysis and conclusions expressed or implied in the journal are those of the author(s). Rajshahi University Law Review Vol. IX, Dec. 2018 Mediation Process in the Code of Civil Procedure: Problems and Prospects Armin Khatun* Abstract This paper is aimed to focus on the lacunas with a narrative discussion about mediation as one of the most effective ways of dispute resolution mechanism, and providing some recommendations on how the problems can be solved by amending the existing provisions or by inserting a new one. The Code of Civil Procedure (CPC), 1908 of Bangladesh has introduced mediation in 2003 and made it mandatory in 2012. Reluctance of the lawyers to mediate and a few other flaws in the procedure affects a successful mediation. The purpose of this research is to find out the problems of mediation under the CPC of Bangladesh with an elaborate explanation and the way to solve those problems. 1. Introduction Mediation is a basic or primary form of Alternative Dispute Resolution (ADR), a way of resolving disputes where a neutral third party assists to reach in a mediation agreement. In Bangladesh, the practice of ADR was present from time immemorial and now included in the justice system of Bangladesh. In 2003 and 2006 respectively, the Code of Civil Procedure, 1908 (CPC) incorporated mediation as an option to resolve dispute by section 89A at original stages of a suit and section 89C at appellate stage, and in 2012 CPC has made mediation mandatory at both level to reduce the backlog of cases, save time, money and to rebuild relationship between parties. Section 89A with 13 subsections discussed in detail about mediation process which are very much effective. The process is not successfully working out because of some problems with certain provisions. A successful mediation mostly depends on lawyer’s and mediator’s sentiment to motivate parties taking part in mediation, though some other factors are equally important. So, certain provisions needs amendment, some new rules * Assistant Professor, Department of Law, Islamic University, Kushtia, Bangladesh. Page | 1 Rajshahi University Law Review Vol. IX, Dec. 2018 and clauses are essential to be inserted in the relevant sections. It will serve the right purpose of the law and then the system will achieve its desired goal. The study is mainly an analytical study and qualitative in nature. The Code of Civil Procedure, 1908, Legal Aid and Services Act, 2000, Family Courts Ordinance, 1985 other relevant Statutes are used as primary data. The write up also includes interviews and discussions with purposively selected persons on mediation issues. Secondary sources of information is obtained mainly from text books. 2. Mediation Mediation is a voluntary and informal process in which the disputing parties select a neutral third party (as mediator) to assist them in reaching a mutually acceptable settlement.1 In mediation the parties have the opportunity to describe the issues, discuss their interests, understandings, and feelings, provide each other with information and explore ideas for the resolution of the dispute. While courts can mandate that certain cases go to mediation, the process remains voluntary in the sense that parties are not required to come to an agreement. The mediator does not have the power to make a decision for the parties, but can help the parties find a resolution that is mutually acceptable.2 The Code of Civil Procedure(CPC)1908 3 of Bangladesh provide a definition of mediation- “Mediation” means flexible, informal, non-binding, confidential, non- adversarial, and consensual dispute resolution process in which the mediator shall facilitate compromise of disputes in the suit between the parties without directing or dictating the terms of such compromise.4 A successful mediation is thus dependent upon two inter-related factors:(1) Willingness of the parties to resolve their dispute, (2) The skill of the mediator in guiding the parties to the point where 1 Halim, Md. Abdul, ADR in Bangladesh: Issues and Challenges, CCB Foundation 2nd Ed; 2011, p. 39 2 Ibid. 3 Act no. V of 1908 4 Explanation 1, Section 89A of Code of Civil Procedure (CPC),Act No V of 1908 Page | 2 Rajshahi University Law Review Vol. IX, Dec. 2018 agreement is possible.5 So, mediation leads to a process in which an impartial third party called mediator helps disputed parties to resolve a dispute through mutually satisfactory agreement but does not impose any kind of decision. 3. Provisions of Mediation under CPC The CPC, 1908 deals with the procedure of Civil Courts of Bangladesh. There are a lot of problems with civil courts and cases, like it is time consuming, expensive, complex in procedure in win-lose situation, dependent on lawyers; prone to biasness, political influence and corruption; rigid and it creates huge pending of cases etc. To reduce backlog of cases, to settle disputes in time, to build up reciprocal relationship, provisions of ADR have been included in sections 89A(mediation), 89B(arbitration) of the CPC in 2003 with an amendment by the Code of Civil Procedure (Amendment) Act, 2003, where both sections discuss the optional provisions of ADR at the pre- trial stage. Later, section 89C was inserted in the CPC by the Code of Civil Procedure(Amendment) Act, 2006 mentioning the provision of mediation during appeal. To make the provisions more effective, another amendment was made in 2012 by the Code of Civil Procedure (Amendment) Act, 2012. This amendment replaced the word ‘may’ with ‘shall’ in section 89A and 89C to make mediation mandatory in both trial and appeal stages. Here in this paper, mediation in CPC is the main concern of discussion. 3.1 Mandatory Mediation at pre-trial stage: Section 89A deals with mediation at pre-trial stage.
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