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March 20, 2017

Alternative justice


March 20, 2017

In a welcome development earlier this year, some parliamentarians were able to get the ADR Bill 2016 passed in the National Assembly to enable people – especially the marginalised communities living across the country – to obtain easy access to justice. The ADR bill has yet to be approved by the Senate. The bill, however, puts forward some positive and worthwhile recommendations.

The proposed bill has suggested that mediation and arbitration should be made available in over 23 types of cases – including, but not limited to, civil matters, commercial disputes, professional negligence cases and pre-emption cases. It proposed to include at least a lawyer or a retired judge in the decision-making panel through a parallel justice system. The proponents of the bill also proposed to set up ADR centres at various places for the convenience of the public.

Recently, India established its Lok Adalats where minor criminal cases and long-standing disputes are resolved through transparent means. Lok Adalats are presided over by a retired judge. This puts to rest questions and reservations on the transparency of the decisions made through this platform. There is no court fee when the matter is referred to a Lok Adalat. If a matter that is pending in a court is sent to a Lok Adalat, the court fee which was paid for the initial trial is refunded back to the parties.

Lok Adalats are functioning at the high court, district and taluk levels. The trust of the low-income citizens of India has made this institution more effective as, according to a 2015 report, Lok Adalats in India managed to resolve 1.25 crore pending and pre-litigation cases speedily. This brought financial relief of over INR 3,000 crore to the ordinary litigants in a single day.

Similarly, in Khyber Pakhtunkhwa (KP), dispute resolution centres (DRC) have been functioning for a long time and are working to settle disputes speedily. The 21-member DRC is a non-bureaucratic mechanism for the dispensation of justice. Between June and December 2014, around 3,000 cases out of more than 7,000 applications received by the DRC management were settled in an amicable manner.

Panchayats in Punjab, jirgas in KP and Balochistan and faislo in Sindh have become traditional ways of settling disputes – especially at the local community levels.

ADR is less expensive and offers a timely, efficient and traditional way of resolving disputes around the world. Mechanisms and systems related to ADR have already been in place across the world.

The countries that follow out-of-court settlements through mediation worldwide include the UK, India, Bangladesh, Egypt, US and Australia. If the ADR bill is passed by the Senate, it will be adopted as legislation. Panchayats, jirgas and faislo will be legalised under the act. These mechanisms will no longer be part of an informal means of resolving disputes.

If we examine the positive aspects of ADR, it becomes evident that these ‘out-of-court settlements’ are speedy mechanisms to provide access to justice. Through these mechanisms, decisions can be made within a short span of time as compared to courts. More often than not, courts provide an expensive option for the public and often cannot do not deliver judgements on time due to severe backlogs of cases. According to recent statistics, there are 1.6 million cases pending in the courts of Pakistan. ADR is therefore an easier method of settling disputes in a speedy and cost-effective manner and without burdening courts.

Though the bill has proposed a series of positive recommendations for ADR to function appropriately and provide speedy justice to the people of Pakistan, some questions still need to be answered.

First, the bill only mentions panchayats and disregards words such as jirga and faislo. Are the legislatures planning to legalise the panchayat system in Pakistan through this bill or are they trying to provide a parallel system of justice other than the jirga and panchayat systems? If they plan to legalise the already present panchayat system, what steps are being taken to ensure that the decisions made will not be influenced by a feudal lord or not exploited in the election campaigns by local politicians?

It would be a better option to include women representatives in the ADR panel. This will not only encourage women from legal backgrounds but also ensure that women complainants can conveniently discuss their issues. The DRCs working in KP have recently appointed a female member from Charsadda to facilitate women complainants of the province. The ADR bill should also ensure the protection of basic human rights – especially the rights of minorities, women and marginalised communities.

It is pertinent to mention here that the ADR bill will only serve as the first step towards a long process of providing speedy justice to people. We cannot expect any change until we strive to sensitise the people of Pakistan about their rights. Bills are passed and laws are put in place. However, people are still unaware about these laws and are unable to exercise their rights. It is the responsibility of our institutions and the duty of every educated citizen of Pakistan to raise awareness among the marginalised sections of society about their basic rights and educate them about the avenues available for access to justice.

Political parties have yet to play a much-needed role in this scenario. They should be mobilised to make it a priority to include access to justice and human rights – especially women’s rights – within their manifestoes as they begin their election campaigns for the general elections of 2018.

ADR bridges the gap between the needs of society and access to justice. In order to decrease violence in society and do away with poor laws that lead to militancy, intolerance and crime in the country, it is necessary for all stakeholders – law-enforcement agencies, religious scholars, political leaders, community mediators and the media - to play their part in strengthening the justice system of Pakistan. The ADR bill is just a starting point of Pakistan’s long journey towards providing its citizens with quick and affordable access to justice.

The writer is former project manager of Youth Parliament Pakistan.

Email: [email protected]

Twitter: @aimenhayatkhan  

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