Why the Amendment to the Legal Aid Act is a Step Forward, Not Backward
Md Junaid, Senior Assistant Judge, Sunamganj
Md Junaid : A recent article by a learned Advocate of the Supreme Court has voiced concern over the latest amendment to the Legal Aid Act, 2000—particularly with regard to making pre-litigation mediation mandatory in certain civil and criminal disputes. While constructive criticism is a hallmark of legal progress, it is equally important to respond with facts, constitutional reasoning, and insights from judicial practice.
Mandatory Pre-Litigation Mediation: Advancing Access, Not Hindering It
The article suggests that mandatory pre-litigation mediation deprives citizens of their right to a fair and speedy trial. Respectfully, this is a misreading of both the spirit and the text of the amendment. Mandatory mediation does not bar access to courts—it simply encourages disputing parties to explore resolution before stepping into years of litigation.
The Constitution of Bangladesh guarantees justice that is effective and expeditious. Mediation—especially at the pre-filing stage—supports that aim. If the attempt fails, judicial doors remain wide open.
Delay Argument: Misplaced and Unfounded
It has been argued that mandatory mediation may lead to more delays due to a lack of fixed timeframes. But in reality, traditional litigation itself is the primary source of delay. Civil suits often take years. On the contrary, pre-litigation mediation—already practiced in various legal aid offices across the country—has shown the potential to resolve disputes in a matter of days or weeks.
This is not theoretical. As a sitting judicial officer, I have seen countless cases where pre-court mediation has prevented years of litigation, protected relationships, and saved costs.
Section 89A is Underutilised: Mandatory Measures are Necessary
Opponents of the amendment cite Section 89A of the Code of Civil Procedure (CPC), which allows in-court mediation. But practical experience shows that this section remains largely unused. Judges often recommend mediation, but litigants and lawyers tend to ignore or delay it.
This amendment responds to that reality: making mediation the first step before formal litigation is a policy shift rooted in necessity.
Legal Aid Infrastructure: A Work in Progress, Not a Barrier
Critics argue that legal aid offices are not equipped to handle this new responsibility. While challenges exist, reform does not wait for perfection. Rather, institutional reform must occur alongside legislative reform. Training, staffing, and monitoring legal aid officers must be scaled up—this is an administrative challenge, not a legislative flaw.
Emergency Relief: Still Protected
Concerns about parties needing urgent relief (e.g., temporary injunctions or maintenance orders) are valid. But such issues can and should be addressed through judicially crafted exceptions or court directions. The amendment does not prevent courts from entertaining urgent matters if they threaten justice or cause irreparable harm.
On Dowry and Criminal Matters: Strengthening, Not Weakening
One of the more serious allegations in the original article is that the amendment may “decriminalise” dowry-related offences. This is not supported by the text of the law. The amendment does not erase any offence—it simply introduces a preliminary layer of resolution before the criminal process is invoked.
In many cases, especially dowry-related complaints arising out of domestic misunderstandings, early intervention by legal aid officers can prevent the situation from worsening. At the same time, if any party refuses mediation or commits further offence, the criminal justice system remains fully accessible.
Conclusion: Reform Requires Courage
Judicial backlogs, increasing litigation costs, and social conflict demand bold reform. The amendment to the Legal Aid Act is not a threat to the Constitution—it is a tool for making justice more accessible, affordable, and efficient. Resistance to reform, especially from those used to an adversarial legal culture, is understandable—but no justice system grows without change.
Let us not reject reform because it is difficult. Let us shape it, monitor it, and improve it through practice—not through fear.
Author Bio: The writer is a judicial officer currently serving as Senior Assistant Judge, Sunamganj. With over eight years of experience in the Bangladesh Judicial Service and a proven track record in Alternative Dispute Resolution (ADR), he has contributed significantly to resolving thousands of disputes outside courtrooms. He was awarded nationally for his contributions to grassroots mediation in the Chittagong Hill Tracts.
