Expeditious justice and ADR
Dr Syed Kaleem Imam
My fathers’ aunt migrated from India in 1947, and got a small house in Rawalpindi against the claim for the property left in Uttar Pradesh. In sheer affection, she also accommodated her sister in the same house. But for the next thirty years, she and her heirs paid heavily for the price of that love by visiting the courts.
The sister had gone to the court to lay her claim for the same house where she was welcomed as a guest and continued to live in for the next three decades. The system’s delay and apathy resulted in any family affection getting lost in the process.
If you are unlucky to visit the courts, sayings like ‘justice delayed is justice denied’ and ‘justice hurried is justice buried’ will resonate very frequently. But the fact is that with millions of cases pending over extended periods, the system makes a mockery of helpless victims merely seeking justice. On the other hand, our police and legal fraternity perhaps yield the best crop out of the situation.
A friend of mine narrated that he was shocked when once, before the arrival of the honorable judge, a court clerk announced, “those seeking the next date should come forward” – and 50 percent of the learned councils proceeded in haste. Maybe, the other 50 percent would have also followed, had they not been accompanied by their clients.
There are depressing tales of deprivations. Should we continue with the prevailing criminal justice system’s (CJS) procedures and structures, wishing it shall overcome stockpiles while moving at a snail’s pace, or should we look for Alternate Dispute Resolution (ADR) for expeditious disposal of cases? If only reforming the CJS was the first goal of the National Action Plan (NAP), rather than the ‘last but not the least as 20th agenda item to be done.
I had a chance to visit the Gilgit-Baltistan Judicial Academy, courtesy the Law and Justice Commission, where I interacted, in a training session, with judicial officers and later had informal chats with police officers regarding ADR. To my pleasant surprise, it was heartening to know that the Ismaili Community was running dispute resolution through their arbitration council. They do not go to the police or the courts and instead settle disagreements through this council which has the trust of the people.
The GB success story reminds me of an uncle known for his pristine lifestyle, who also had the trust of his extended family. Once a year he would visit from abroad, and most of the indisposed cranky issues of this large family would be resolved. His attributes were fairness, swift rapprochement, impartiality, good judgment, topping it all up with empathy. And it worked. And that’s what mattered to the family. The family constantly yearned for this kind uncle to visit more often.
Sadly, results of organizations responding to complaints and claims are not forthcoming. Recompense and settlements are still a far cry. No doubt, the CJS – police, courts and prison – depends on efficacious functioning and immaculate coordination. However, all three tiers continue to decry lack of resources, capacity, extraneous interference etc. But the fact is that lack of will, diligence, and dedication of stakeholders is what they should be lamenting.
Analysis reveals that a total of 1970 police stations functioning all over the country register around over 700,000 First Information reports (FIRs) every year. Given the underreporting, not recording etc, realistically this number can swell to 20,00,000 if every felony is registered.
Inexplicably solving a case is one thing; proving it in a court of law another. Detection of cases (around 60 percent), recovery of property (around 50 percent) and conviction rate (around 18 percent) have never been very satisfactory – though major cases get spotlighted and are mostly traced. The system still looks for ocular testimony though forensics, and collaborative evidence is handy to determine the truth.
False registration and perjury are not seriously rebuked, resulting in more concocted and baseless allegations, upsurge in the resubmission of fake claims. Not accounted for are other thousands of non-cognizable cases being reported directly to the police stations, revenue offices and courts.
Of course, many disputes are settled through jirgas, panchayats, courts, police stations and in the lawyers’ chambers. If ADR is doable at a smaller scale here, why not make it a norm at every stage as an obligatory tier of the CJS?
I have served in three UN peacekeeping missions where the belief is that dialogue is still the best way of managing disagreement. The dispensation of justice has been mandated under Article 37 of the constitution to “ensure in-expensive and expeditious justice” to the people of Pakistan.
The people are looking for fair, smooth, and speedy trials. The courts are endeavoring for completion of the due process for a fair verdict. The police, as the first responders, are looking to investigate and ensure completion of legal formalities to prosecute the wrongdoers. The procedure, though simple, is often stretched to favor the favorites.
A few years back, the Police Reform Committee (PRC) formed to reform the police system, established complaint cells under the supervision of the SP all over Pakistan; this reduced the burden of the bulging applications of 22-A and 22-B by 27 percent. Fortunately, many disputes were disposed of at the initial stage. I suggest that these complaint cells can serve as mediation centers.
Advocacy for ADR entails that it is inexpensive, swift, non-antagonistic, accommodating, durable and keeps confidentiality. There are seven types of ADR presently in vogue, though less intensely enforced: Arbitration, Negotiations, Mediation, Conciliation, Adjudication, Expert determination, Ombudsman.
Common inherent risks attached with ADR are power disparity, unwilling adversaries and lack of models and ruling edicts. But, despite some inherent challenges, many countries have introduced reforms and have adopted ADR techniques, in responding to the challenges of an ever-increasing workload on police stations, revenue offices, and courts. The UK, Australia, China, Japan, India, Sri Lanka are some of the countries effectively using these ADR techniques with impressive results. ADR in Sri Lanka has exceptional status where a person cannot file a suit unless s/he has obtained a permit from the Mediation Board.
It is reassuring that Pakistan is now cultivating an interest in out-of-court procedures of dispute resolution. With economic changes and especially the Covid-19 crisis, the number of new legal disputes has increased significantly. Encouragingly, almost all prevailing laws acknowledge the resolution of a dispute through arbitration. The Code of Civil Procedure (Amendment) Ordinance: Section 89-A authorizes the courts to secure expeditious disposal of a case by adopting ADR methods, including mediation and conciliation, with the consent of the parties, wherever deemed necessary.
It is promising that the Alternate Dispute Resolution Act, 2017 can provide a system of alternative dispute resolution of civil, criminal, and commercial disputes. Provincial governments have also made legislations accordingly. For instance, Punjab has enacted the Punjab Alternative Disputes Resolution Act 2019, Sindh has presented Code of Civil procedure (Sindh Amendment) Act 2018 on 89-A, addition to section 2 in definition and Order X Rule I, Khyber Pakhtunkhwa has the Alternate Dispute Resolution Act, 2020 (Composition of Saliseen Selection Committee) and the Balochistan Local Government Act 2010 provides the same.
The ADR report of Punjab from June 1, 2017 to April 30, 2021 shows that ADR centers dealt with 24,906 cases. The overall mediation success rate was 56 percent. In KP, in 24 districts, 44,137 ADR cases were brought up, of which 35,745 ended in compromise. Legal actions were initiated for 7,213 complaints and 1,179 cases are under process for adjudication.
Isn’t it time we strengthened ADR as it can give people their dues reasonably and promptly? Everyone – lawyers, judges, police officers, relevant stakeholders, and even prison staff – should be oriented to develop the ability to settle issues no matter what the stage is. Justice should be inexpensive and swift, and not taken as mere business or a routine chore. So why not let ADR be the first line of action between contesting parties in all disputes?
At the moment, justice, unfortunately, is the comfort of the rich. It is time to change this ground reality. Relief must be given to those who are stuck in police stations and courts for years and years. It is imperative to resolve and restore peace between warring parties before there is nothing else to be lost among them.
Published in the News, July 16, 2021