Although the entire Bangladeshi population holds the right to access justice systems, there is a big gap between theory and practice due to costs, backlogs, and a lack of resources and knowledge by the people seeking out these services. More often than not, even in the case of simple claims, they can get delayed due to formalities and administrative complications. Furthermore, given that formal judicial systems are normally located in urban areas, it is difficult for the majority of the population to have physical access to them given that eight in ten Bangladeshis reside in villages.
Therefore, most of the population turns to informal mechanisms, such as the shalish. Through these sessions disputants can solve their problems quicker, with few to no costs, and in a way where they are able to express themselves freely given their informal nature. Also, by creating a space in which local disputes can be addressed, the shalish system is effective in preventing the escalation of violence of these issues.
Shalish sessions consist of influential and well-respected leaders in the community who come together to settle disputes and listen to the actors involved, as well as their families. This community-based mechanism can be invoked to deliberate on a multitude of civil matters, but most commonly on issues about family and gender, such as violence against women, inheritance or divorce, and land ownership. Given that each case is unique and the gravity of the problems addressed varies, there is no set structure or defined size or timing for these gatherings. Also, although the main purpose of the panels is mediation or arbitration, in its most severe form they can assert punishment over individuals which have not agreed to its jurisdiction.
There are three types of shalish sessions(although it is important to note that these often overlap in practice):
- Traditional shalish – involve the gathering of male village elders and concerned actors to settle community disputes. Even though some of the deliberations are not fair and equitable, they hold significant value because they come from well-known and respected individuals in the community. However, given that they are run only by high-level males, women are susceptible to receive harsh punishments through the issuance of fatwas, or legal rulings issued by recognised religious authorities of Islam. Corruption is common as a way to maintain the spheres of influence over these judiciary systems and perpetuate cultural norms and biases.
- Government-facilitated shalish – include the participation of the Union Parishad (UP, which is the lowest level of local elected government) as chairs and members leading the sessions and considering the laws meant to regulate the punishments delivered. However, it is widely reported that the structure and dynamics of this kind of shalish are highly similar to the traditional form in the way that local patronage systems affect the decision-making processes, and the rights of women and vulnerable groups are largely ignored. Nevertheless, there is a growing trend in the inclusion of women in UPs.
- NGO-facilitated shalish – provide gender and social justice training and education to shalish and community members, as well as support the organisation of sessions and introduce record-keeping techniques. The Madaripur Legal Aid Association (MLAA) has been the most significant actor in promoting this framework and advocating for the modification of gender and class biases in these processes, and has also trained various other NGOs in the matter.
The participation of NGOs in these judiciary systems has proven effective in mitigating corruption and gender and class biases, and to have a positive impact on the performance of these systems. Leaders now feel discouraged from extorting the disputants in order to rule in their favour, and the documentation of all sessions strengthens enforcement mechanisms. Also, if faced with major criminal cases in which the leaders of the shalish are personally involved in, NGOs have been able to intervene and bring in the necessary state judicial forces (e.g. lawyers, police, prosecutors and judges) to make the matter more equitable. Moreover, they encourage the participation of women and disadvantaged communities, whether as shalish panellists or as disputants during sessions.
Furthermore, by providing education to the community about their rights, abuses by members of high-levels of society are avoided. An example of this can be illustrated by the rights of divorced couples. Often times religious leaders would profess that the only way a woman could remarry would be by having sexual relations with another man other than the husband, which would be suggested to be the religious leaders themselves. Due to a combination of all these elements, NGOs are having a positive influence on the gradual sustainability on the improvement of shalish sessions.
Although they can perpetuate poverty and the powerlessness of women and vulnerable groups if executed ineffectively or infiltrated by corruption, shalish sessions do provide communities with free access to justice. Also, given that they are carried out in an informal and familiar manner with the presence of multiple people in society, people are able to express themselves freely because it adds an element of comfort in community members. Settling these disputes locally also has strengthened community solidarity where practiced. Lastly, since the leaders of these sessions are well-respected, they are members of the community and there is participation from all the parties involved in each particular case, the decisions hold more value because people are seen as more accountable by their peers than the formal justice system.