The timely dispensation of justice to the public in Pakistan is one of the core issues the justice system faces, notwithstanding the fact that the constitution of the country guarantees that the State shall ensure inexpensive and expeditious justice (Article73). There are various instances which sadly suggest that cases were disposed of long after the victims had died. This really ridicules the real spirit of the law. Currently, more than 1.8 million cases are pending in Judiciary at all levels in Pakistan. Moreover, a large issue remains that pendency has witnessed a rise rather than fall, despite the promises of speedy justice made in the National Judicial Policy in 2009.
The judiciary alone cannot be made responsible for this problem. All agencies of the justice system such as lawyers, the police, prosecution, prisons, and all other law enforcement agencies are equally responsible. The court cannot ensure speedy dispensation of justice unless it is assisted properly and sufficiently by these institutions.
Though the performance of the judiciary is not up to the mark in Pakistan, people still trust formal justice systems in terms of fairness of process, against the fact that they prefer traditional justice systems due to their speedy and cost-effective nature (World Justice Project, 2016). Thus, the burden on the judiciary has to be reduced so that it can provide expeditious justice and disengage people from traditional justice systems, which often operate at the cost of many human rights.
One way to reduce the burden on the judiciary remains proper utilisation of formal alternative dispute resolution mechanisms provided in the legal regime of Pakistan. Albeit, there is critique on these mechanisms on various grounds, these mechanisms unfortunately remain untapped. The formal alternative dispute resolution must be understood differently from traditional forms of alternative dispute resolution. The formal ADR works within the ambit of laws and with endorsement of courts in many cases. Whereas, traditional ADR mechanisms do not have legal basis and operate without control of the courts causing human rights violations of many marginalised groups, especially women and children in our context.
The formal ADR mechanisms in Pakistan are based in many laws. However, the major laws that govern formal ADR mechanisms in the country include the Arbitration Act 1940, Small Claims and Minor Offenses Ordinance 2002, Muslim Family Law Ordinance 1961, the Family Court Act 1964, Offices of Ombudsman and Section 89(A) of CPC and Section 345 of CrPC. Many other subsidiary laws also include provisions for the same.
However, the law which remains absolutely unutilised is the court-annexed ADR law namely Small Claims and Minor Offenses Courts Ordinance 2002. The law carries immense potential to resolve many of the disputes through ADR mechanism without going into often protracted litigation process. The SCMO-2002 introduces a detailed system of accessing mediation, including the appointment of mediators for small claims on civil and minor offences on criminal side, though process on criminal side is not so clear (Legal Aid Society 2017). Sindh is probably the only province in Pakistan which has notified Saalis committee in pursuance of the law. Back in 2015, High Court of Sindh notified 270 Saalis Committee members back in 2015 via notification (GAZ/Misc — 2004(8), 270) under this law; the committee includes only 17 women out 270 total members, which needs to increase.
According to the law, cases of Rs. 100,000 or below, and offences punishable with three years of imprisonment, or with fine or with both can be referred to the Saalis committee. There are more than one hundred offences in Pakistan Penal Code (Act XLV of 1860) whose prescribed punishment remains three years or less than three years, which can be settled by the ADR mechanisms. However, there is critique from some women rights activists who believe that sections dealing with violence against women should not have been included within the ambit of this law.
There seems to be uneasiness amongst the legal fraternity that this law might affect their bread and butter, which is not the case in reality. Lawyer’s still have a role to play in court-annexed ADR mechanisms
There seems to be uneasiness amongst the legal fraternity that this law might affect their bread and butter, which is not the case in reality. Lawyer’s still have a role to play in court-annexed ADR mechanisms, including in SCMO-2002.In reality, without support of lawyers, ADR mechanism cannot work. However, in the interest of humanity and principle of expeditious justice, lawyers must think beyond individualism and support this mechanism.
There also seems to be lack of interest at the government side. This can be gauged from the fact that despite the fact that the law was passed in back 2002, its rules are not yet framed (Legal Aid Society 2017).
Now what needs to be done at immediate basis is to notify the rules of the SCMO-2002. Secondly, all other provinces should notify gender inclusive Saalis Committees. However, beyond the formation of committees, sincere and serious efforts must be taken for the utilisation of court-annexed ADR laws including all other formal ADR laws in Pakistan. Unless the formal ADR mechanisms are not utilised properly, the burden on the courts cannot be reduced and most importantly the principle of expeditious justice will remain an elusive dream in the country. In this situation, masses will also continue to sustain the wrath of heavy expenses incurred during overall litigation process. Most importantly, lawyers and judiciary must develop ownership of the court-annexed ADR mechanisms in the country.
The writer holds a Master’s degree in Human Rights and Democratisation from the University of Sydney. He can be reached at [email protected], and tweets @Jamiljunejo
Published in Daily Times, July 18th 2018.