::Alternative Dispute Resolution in Pakistan

Alternative Dispute Resolution

M. AFTAB IQBAL CHAUDHREE

MY LORD MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, THE HONOURABLE

CHIEF JUSTICE, THE SENIOR PUISNE JUDGE, THE HONOURABLE JUDGES OF

THE SUPREME COURT, MALIK MUHAMMAD QAYYUM, PRESIDENT, SUPREME

COURT BAR ASSOCIATION;

Distinguished Guests!

Ladies and Gentlemen

I feel pleasure in addressing this Conference on “Alternative Dispute Resolution”

(ADR) organized by the Honourable Supreme Court of Pakistan. I congratulate the

organizers on selecting, among others, such an important topic for this Conference. I

believe the discussions and deliberations would go a long way in enabling the legal and

judicial fraternities to work on ADR. First, we will have to see as to what ADR suggests.

It is a generic term which refers to a wide array of practices, the purpose whereof is to

manage expeditious resolution of disputes at less expense and with as little adverse

impact as possible on business and other relationships. It is an out of court settlement of

disputes through various modes such as arbitration, mediation, conciliation, early neutral

evaluation, facilitation, etc. It is a relatively new term for dealing with an ageold problem –

the problem of heavy backlog, delayed resolution of disputes, expensive litigation. In a

broader sense, ADR offers certain advantages, such as:

i) Quick resolution of disputes, through flexible procedure, which is cost

efficient and brings about greater amity and understanding between the

litigant parties, which is not possible in adversarial courtroom battles;

ii) The mechanism offers significant relief to the courts. It increases access

to justice for people who cannot or will not use the court system to resolve

conflicts in culturally appropriate ways; and

iii) It offers a wide range of remedies to solve the dispute in hand.

ADR is being successfully practiced in advanced counties like UK and USA. In

UK, ADR is not only an important tool for resolution of disputes but has become

mandatory before the parties commence litigation. The two countries of course have the

necessary infrastructural facilities and a network of trained lawyers to do the job to the

satisfaction of the parties.

The criticism against ADR includes possible de-professionalisation of decision

making. It is also apprehended that the stronger or more knowledgeable party will

dominate the proceedings. In other countries, where ADR is successfully practiced, the

following facts are considered as a checklist in determining which alternative procedure

is best for a particular dispute:

a) Nature of the relationships between the parties;

b) Issues involved;

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c) Business environment;

d) Present position of the case;

e) Further costs of resolving the dispute through litigation;

f) Concern for privacy;

g) Relationship with outside attorneys; and

h) The likelihood of settlement.

The foreign models of ADR, which are working successfully, have not taken the

present shape in the blinking of an eye. They took a long time before being accepted as

reliable methods of dispute resolution. The position in Pakistan is that there are

numerous laws providing for ADR. The Family Laws envisage arbitration in matrimonial

disputes both pre and post trial conciliation between spouses in a suit for dissolution of

marriage, settlement of maintenance etc. Similarly, the Conciliation Courts Ordinance,

1961 prescribes a full fledge mechanism for out of court settlement of certain categories

of civil disputes and criminal matters.

Following the recommendations of the Law and Justice Commission of Pakistan,

a new Section 89-A was inserted in the Code of Civil Procedure, 1908, (CPC) which

empowers the court to adopt, subject to the consent of the parties, any suitable method

or procedure including the use of ADR to settle any dispute. A complementary addition

was made to Order X of the CPC through Rule 1A authorising the court to conduct

preliminary proceedings and issue necessary orders for expediting the process of trial.

The same further enables the court to issue commissions, examine witnesses, admit

documents, take other steps necessary for the purpose of accelerating trial proceedings,

and adopt any alternative method of dispute resolution including mediation, conciliation

or any such other means. Moreover, the Small Claims and Minor Offences Ordinance

was also promulgated in 2002. A special feature of this statute is the summary

procedure prescribed for trial and out of court settlement of disputes.

A common problem in our country is that while many laws are made, they are not

fully implemented, whereby many people are denied justice. The reasons for this

include:

1) Huge pendency of cases in courts;

2) Insufficient number of Judges, particularly in the subordinate courts;

3) Distance from a court;

4) Inability to secure adequate legal representation;

5) Costs involved;

6) Lack of information;

7) Establishment of special courts the limits of whose jurisdiction sometimes

takes a long time to be settled;

8) Lack of communication and language barrier;

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9) Inappropriate working conditions in subordinate courts;

10) Extremely low salaries of subordinate court Judges;

11) Lack of proper training of subordinate court Judges;

12) Lack of knowledge and interest by the subordinate court Judges and

lawyers in screening out false and frivolous cases at the very outset;

13) Questionable integrity and caliber of Judges and mode of their

appointment;

14) Lack of commitment in most of the Judges to administer speedy justice;

15) Defective investigation, whether on account of incompetence or

dishonesty;

16) Questionable integrity and caliber of State counsel, criteria of their

appointments and lack of a sense of responsibility among them;

17) Tendency of lawyers to prolong the matter and mislead the courts;

18) Tendency of filing misconceived appeals and petitions in Superior Courts;

19) Toutism;

20) Exploitation including nuisance value of a lawyer or alleged connection

with a particular Judge;

21) Discrimination against women and oppressed classes; and

22) Stigma surrounding certain crimes.

Unless some effective measures are taken for removing the causes mentioned

above, which does not seem likely in the foreseeable future, the people may not be able

to get justice from the prevalent court system. Therefore, the avenues to resort to ADR

system should be explored which require not only legislation but several other measures

for its implementation. Such steps include orientation of lawyers to persuade their clients

for an amicable settlement, public awareness to inform the litigants to avail ADR and the

contribution of civil society and NGOs to establish necessary forums for conducting

proceedings.

M. AFTAB IQBAL CHAUDHREE

Advocate-General, for the Punjab,

Lahore, Pakistan.

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