ALTERNATIVE DISPUTE RESOLUTION (ADR): IMPORTANCE, NEED, AND IMPLEMENTATION IN PAKISTANI FAMILY, CIVIL AND CORPORATE LITIGATION
by
LIAQAT ALI KHOSO
Additional District and Sessions Judge, Malir, Karachi
[email protected]
03337120634
https://orcid.org/0009-0008-9814-9327
Allah (SWT) ordained in the Holy Quran that:-
﴿ وَإِن طَائِفَتَانِ مِنَ الْمُؤْمِنِينَ اقْتَتَلُوا فَأَصْلِحُوا بَيْنَهُمَا ۖ فَإِن بَغَتْ إِحْدَاهُمَا عَلَى الْأُخْرَىٰ فَقَاتِلُوا الَّتِي تَبْغِي حَتَّىٰ تَفِيءَ إِلَىٰ أَمْرِ اللَّهِ ۚ فَإِن فَاءَتْ فَأَصْلِحُوا بَيْنَهُمَا بِالْعَدْلِ وَأَقْسِطُوا ۖ إِنَّ اللَّهَ يُحِبُّ الْمُقْسِطِينَ﴾[ الحجرات: 9] : الحجرات - Al-Hujuraat - الجزء : ( 26 )
“And if two parties or groups among the believers fall to fighting, then make peace between them both, but if one of them rebels against the other, then fight you (all) against the one that which rebels till it complies with the Command of Allah; then if it complies, then make reconciliation between them justly, and be equitable. Verily! Allah loves those who are equitable.”
ABSTRACT
Alternative Dispute Resolution (ADR) refers to a variety of processes that help parties to dispute to resolve the disputes without a trial. Common ADR methods include mediation, arbitration, conciliation, and negotiation. ADR is widely acknowledged as a cost-effective, time-efficient, and less adversarial alternative to conventional litigation. It puts a full stop to the disputes effectively rather to protracted litigation in the courts and tribunals. Across the globe, ADR has been embraced to reduce the burden on courts and to provide more accessible justice at the very ease and convenience of parties to dispute. In Pakistan, the formal legal system has become increasingly burdened with a growing backlog of civil and corporate cases, often resulting in delays of several years. This inefficiency underscores the urgent need to adopt ADR as an effective mechanism for dispute resolution. Pakistan's legal framework provides for ADR in statutes such as the Code of Civil Procedure, 1908 (as amended), the Arbitration Act, 1940, and the Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011. This article explores the importance and need for ADR in Pakistan, examines its implementation in civil and corporate litigation, and references both international and Pakistani laws to highlight its efficacy.
KEYWORDS: mediation, arbitration, conciliation, negotiation, Alternate Dispute, Civil, Criminal, Cost effective, time efficient, Karo-Kari, Wani, Sawara, Jirga, Faislo, Panchayat.
CONCEPT AND TYPES OF ADR
ADR may be explained as a structured process, whether adjudicatory or non-adjudicatory, in which parties attempt to resolve their dispute with the assistance of a neutral third party, without resorting to litigation.
ADR is carried out in different methods having different process, effect and procedure. There are four most important primary modes of ADR. The main focus of the ADR process and all methods is to resolve the dispute between parties in an amicable way effectively and efficiently. The basic principle in ADR is that the concerned aggrieved parties are the best persons to understand the issues to be settled and resolved with some cushion with assistance of neutral persons who facilitates and adjudicates the matters in issue between parties. Amongst all methods of ADR the mediation, Arbitration, conciliation and negotiation are prominent in the field.
Mediation: A voluntary process where a neutral third party (mediator) facilitates dialogue between disputing parties to help them reach a mutually acceptable resolution. It is a voluntary process where parties settled their disputes and issues amicably. In mediation a third person plays his role but he remains neutral in the entire process and called Mediator. The Mediator assists the parties to reach at some mutually agreeable terms and conditions to resolve the dispute. The Mediation process is not binding in nature. The mediator does not pronounce any decision or verdict to the dispute. The role of mediator is to facilitate the parties to sit and talk on the issues. This process is called dialogue and negotiation between parties. The procedure of mediation is informal. The atmosphere is totally different that of a court of law and other forum during mediation. The autonomy of party always prevails in mediation process. There is flexible situation for parties during negotiation and dialogue process. Mediator and the parties are bound to maintain confidentiality of proceedings and shall not disclose the process of dialogue during mediation process to any other person or at any other forum. The mediation process also focuses to continuity of the relations between parties. The stringent relations would be brought to flexible.
Advantages of Mediation are that it is a flexible process conducted by consent of parties. The mediator does not interfere in the dialogue between parties. The Mediation process is not binding upon parties and not legally enforceable. There is a third person who is neutral in all aspects. The mediator plays his role to the extent of facilitating the parties to amicably reach at some solution to the dispute.
The process of mediation is generally found useful in Family disputes. The mediation in the matters of Talaq and Khula is applied. The custody of minors and maintenance matter are resolved in speedy, dignified manner in presence of parties facilitated by the Mediator. The commercial and contractual matters are also dealt with by process of ADR by way of Mediation. The work place conflicts are also dealt through Mediation.
Arbitration: A formal process where a neutral third party (arbitrator) renders a binding decision after hearing both sides. This method is particularly popular in commercial and corporate disputes. The arbitrator is appointed by the parties. The decision of the arbitrator is called an AWARD which is enforceable in law. Arbitration is an essential and very important supplemental process to the traditional court litigation for speedy, cost-effective and less adversarial method of resolving the issues in parties. It is a private judicial determination of disputes by independent third party, known as arbitrator, appointed by the parties themselves. The arbitration process is based on principles of autonomy of parties. The parties independently appoint a third party as arbitrator. The arbitrator is a neutral person having no concern with the issues and interest of parties. The arbitrator shall hear both parties and peruse record made available and then decide the dispute by passing award. The award is enforceable at law and has binding effect on both parties to the dispute. The process of arbitration is nearly same as conventional litigation. The rules of evidence are not applied in the arbitration proceedings . Where the contract between parties provide the arbitration clause, then the suit of parties will be barred .The arbitration is purely based on the consent of parties. It is lawful that parties may have pre-agreed contract by way of Arbitration Clause in the contract. It is also permissible that parties may execute a post agreement or post dispute arbitration agreement on certain terms and conditions. The arbitration process is also called as private adjudicatory process. The proceedings are not made in public rather confidential and restricted one unlike the Court decisions and proceedings. No one can have excess in the proceedings of arbitration process. The commercial and international agreements are specifically executed with arbitration clause in it. The terms and conditions are sometimes mentioned in the clause regarding number of arbitrators, or sole arbitrator, which party or parties shall appoint the arbitrator, place of sitting of arbitrator, costs borne by whom, nature of dispute to be referred to etc are mentioned clause-wise in the agreements. It is also suggested by the experts that in the particular fields of commercial agreements, the arbitrators may be appointed or agreed to be appointed by parties, must have relevant expertise in the particular nature of disputed area. The procedure of arbitration is flexible. The parties may choose the rules from available rules like ICC, UNCITRAL. The parties may also choose any ad hoc mechanism for appointment of arbitrator. Once arbitrator is appointed and an award is passed, then the same shall be binding upon the parties to dispute. The Arbitration Act, 1940 is applicable law in Pakistan. The Award of the arbitrator is binding on parties.
The Arbitration process is based on autonomy and neutrality of parties’ options to appoint the arbitrator of their choice by mutual consent. Parties can also choose the governing law or an ad hoc procedure to be conducted by the arbitrator. The venue for conduction of arbitration process is also to be selected by mutual consent of parties. There is confidentiality in proceedings of arbitration as it is held privately where public access is not allowed. The sensitive business information and reputation is protected. Arbitrators may be chosen by parties on the basis of the expertise in business related issues so also legal expertise. The process of arbitration is speedy and efficiently done. There are bright chances in arbitration process that it may conclude the issue once for all and there is limited ground for appeal. Hence prolonged litigation culminates in short time through arbitration. The New York Convention 1958 is applicable and enforceable in more than 155 states wherein arbitration award is enforced internationally. Pakistan has signed the New York Convention, 1958 in the year 2005. Resultantly some new legislation is made in Pakistan. In Pakistan the Act, 2011 called The Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011 was promulgated on 19th July, 2011. The UNCITRAL Model Law on International Commercial Arbitration 1985 is accepted and adopted by so many countries to enforce international Arbitration in commercial agreements. The Arbitration Act, 1940 is applied to the domestic arbitrations. However the Act, 1940 is now deemed to be outdated. The Government of Pakistan may consider the viable changes in the international commercial and economic activities beyond the borders concepts, to either promulgate fresh legislation to coop with the rising problems or at least to amend the existing laws and bring them in consonance with requirements of the stakeholders as of 21st century.
There are some drawbacks in arbitration process in Pakistan. The first and foremost is out dated law of Arbitration Act, 1940. There are no provisions for interim relief in the Act, 1940. The electronic online hearings and fast track process and other like issues are lacking to be addressed in the Act, 1940. It is also felt that judicial interference by the orders of the courts in litigations is causing delay in process of arbitration. There is either limited awareness or unfamiliarity of law of arbitration in masses. There is no institutional support in Pakistan except a few registered arbitration centers. The lack of education in arbitration process in legal fraternity and business community is also main cause of diverting litigation to arbitration. There seems less or even no interest on part of government to promote arbitration process through enactments of new updated laws. The United Kingdom model of arbitration may be helpful in Pakistani system. Training of judicial officers, lawyers and business community in adopting arbitration process is need of the hour.
Conciliation: It is considered that formal litigation is not the most effective method for dispute resolution. There is heavy backlog of cases in the courts. The delay is finalization of civil and corporate litigation is main concern of the stake holders so also litigant public on one hand and on the other it burdens the parties’ heavy costs and rigid, complicated and continuous trial process. The legal system at world level welcomed the Alternate Dispute Resolution mechanism wherein Conciliation is one of the effective modes to settle the differences and disputes amicably. Similar to mediation but the conciliator may propose solutions to the parties.
Conciliation is a non-adjudicatory dispute resolution method between disputing parties where a neutral party, The Conciliator, assists the parties to identify the core issues of dispute. He clarifies the misunderstood things to the parties for smooth progress in dispute resolution. He may also find out and explore the best possible solutions for the dispute between parties. The Conciliator shall then facilitate the parties in drafting the settlement agreement. The process of conciliation is a voluntary procedure where party may enter freely and likewise withdraw freely at any time. The proceedings are confidential. All the proceedings are not made public and no admissions during conciliation can be disclosed to any other person. The process is flexible where parties can chose their own procedure, timeline, structure and schedules. The conciliation process is non-binding until final agreement is made. The conciliation process is cost effective and no formal pleadings or evidence is required. The dispute is resolved in a speedy manner. Since conciliation is amicable settlement between parties, hence the relationship between parties is preserved for future business. The international laws are available. UNICITRAL Conciliation Rules, 1980, UNCITRAL Model Law on International Commercial Conciliation 2002, Singapore Convention on Mediation 2019 are in filed for guidance and seeking procedure for conciliation process in Pakistan. The Code of Civil Procedure, 1908 provides Section 89-A (as amended in 2002). Later on the Sindh Amendment was made in 2019 which provides detailed procedure for referring the cases to mediation or conciliation . Generally the small claims, Family disputes, and other commercial and business related issues are decided through Conciliation proceedings. The courts are expected to respect the party autonomy. Sindh High Court has appreciated the conciliation process in cases.
Negotiation: Negotiation is an informal and voluntary process where parties attempt to resolve their dispute without third-party intervention. It is the oldest and most foundational method of resolving disputes. In Negotiation process the parties communicate each other directly. There is no third party decision-making or facilitation in Negotiation. Parties are engaged each other voluntarily. The process is fully controlled by parties. There is supreme confidentiality in negotiation process. The parties identify the agreed upon position to resolve the dispute. Good faith and honesty is the main part of the negotiation proceeding. It is speedy, cost effective and self determined process. Negotiation process prevents the parties to frequently go into litigation.
TYPES OF NEGOTIATION
There different types of negotiation process. These types can be divided into three parts:
1/ Distributive Negotiation: in this type of negotiation the party plays in win-lose approach. Each party tries to gain the most of the benefits. It is also called Positional Negotiation
2/Integrative Negotiation: this approach is called Win-win position. It is based on mutual value expansion. It may be concluded in this process that one party may get monitory benefit and the other gets benefit in kind.
3/Multi-party Negotiation: this is generally done in multiparty stake holders. It is common in corporate and public policy disputes.
The process of negotiation is legally acceptable worldwide. In the United States of America majority of civil nature cases are settled through negotiation before reaching the formal litigation, hence curbs the back log of cases in the court on one hand and on the other hand rise in litigation in courts is diminished.
HYBRID ADR SYSTEM
Since the law always pass through evaluation process and procedures develop by passage of time as per requirement of the society to do justice to the parties. ADR is also passing through same position. It is not necessary that only one time of ADR should be done. The ADR may be hybrid. It is by now acceptable in the international law that where a hybrid ADR is done the same is enforceable between parties. In the case of Gao Haiyan & Another v. Keeneye Holdings Ltd. Citation: [2012] HKCA 63 – Hong Kong Court of Appeal, the hybrid ADR was accepted by the court of Appeal in Hong Kong.
PROTECTION TO ADR PROCEEDINGS
In 2019, the provisions of Order X CPC were amended by Sindh Statutes. The provision of order X rule 1-D CPC was added. It provided four important prohibitions. The first prohibition was that the mediator /conciliator shall not act on behalf of any party to the process of ADR. He shall not be called as witness in the court. He has only to authenticate the settlement agreement between parties. Secondly, any information, document, statement, disclosure of fact formal record, audio video recording made to the mediator shall be kept confidential except with written approval of mediator and consent of parties. Thirdly, no document or communication made during ADR shall be produced in the court regarding the case or any other related proceedings. Fourthly, no information or any kind of communication used during ADR shall be used in any other related proceedings whatsoever. The provisions strengthen the process of ADR by providing such cover to the ADR proceedings and mediator himself. The status of mediator is just facilitator and not a party or witness to the proceedings. The ADR proceedings are not liable to be disclosed or brought on record of the court except the settlement agreement duly authenticated by the conciliator/ mediator. This protection infers that the settlement agreement shall not state all details of communication, documents, disclosure of facts, and other related discussions between parties during ADR process. The settlement agreement shall only mention the agreed upon points and terms and conditions of the settlement only.
COMPARATIVE ANALYSIS OF ADR MODES
Feature Mediation Arbitration Conciliation Negotiation
Binding Decision No Yes No No
Role of Neutral Facilitator Adjudicator Advisor/Facilitator None
Confidentiality Yes Yes Yes Yes
Party Autonomy High Moderate High Highest
Formality Low High Low Very Low
IMPORTANCE OF ADR IN LEGAL SYSTEM OF PAKISTAN
Legal system of Pakistan is inherited from Colonial era of British. The system gradually developed through constitutional phases, legal and statutory amendments, reforms and precedent laws by interpretation of statutes from the higher judiciary while deciding the cases. The formal litigation process in Pakistan is complex, slow and the courts are over burdened. The cost of litigation and cost of time is very much high due to such complex and prolonged procedure in the court. Alternate Dispute Resolution (ADR) is pivotal supplement to the conventional system of dispute resolution through courts. ADR is non-judicial, effective, time efficient, cost effective and early disposal method of resolving the disputes. The ADR process, as discussed above, includes Arbitration, Mediation, Conciliation, and Negotiation. The ADR covers the important Civil, commercial, Family and administrative issues. It does not have a complex, time consuming, nonstop procedure for resolution of disputes. The parties to the dispute resolve their differences privately, with their own rules, terms and conditions in ADR sometimes with help of a third party who has no interest in the situation. The third party only facilitates and identifies the possible solutions to be agreed upon by the parties. Due to overburden of back logs, there are bright chances for parties to negotiate and resolve the disputes through ADR. The steps taken through ADR process were repeatedly appreciated by the superior courts. ADR may reduce caseload remarkably in Pakistan. It is the road less travelled in our country. Since in the local societies, the compromise and forgiveness is overwhelmingly appreciated, hence the resolution of disputes through ADR is also effective till gross root level. The legal framework also provides for ADR. In the Code of Civil Procedure, 1908 (CPC) provides section 89-A wherein the courts are empowered to refer civil disputes for ADR. The Sindh amendment in section 89-A CPC gives detailed and elaborated process of ADR. A separate Order IX-B Alternate Dispute Resolution was added in CPC in 2020 by the notification of Lahore High Court Lahore . The provisions of Order X Rule 1-A, 1-B and 1C CPC were added in CPC in 2019 . These steps show the seriousness of the legislature towards the ADR methods.
INTERNATIONAL CASE LAW
1. Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth Inc.
Citation: 473 U.S. 614 (1985) – United States Supreme Court
Brief Summary: The U.S. Supreme Court held that arbitration clauses in international commercial contracts are enforceable even if the dispute involves issues under U.S. antitrust laws. The Court emphasized the importance of honoring arbitration agreements under the Federal Arbitration Act and the New York Convention, especially in international trade.
Significance: Strengthened international commercial arbitration and clarified that statutory claims (e.g., antitrust) are arbitrable if agreed by the parties. This case has also relied upon the New York Convention for enforcement of ADR matters.
2. Fiona Trust & Holding Corporation v. Privalov
Citation: [2007] UKHL 40 – UK House of Lords (now Supreme Court)
Key Issue: Scope of arbitration clauses.
Brief Summary:
The House of Lords held that unless the arbitration clause is clearly restricted, it should be interpreted broadly to cover all disputes arising from the contract. This approach is known as the “one-stop shop” principle for dispute resolution.
Significance: Reinforced party autonomy and supported broad interpretation of arbitration clauses to avoid parallel litigation.
3. AT&T Mobility LLC v. Concepcion
Citation: 563 U.S. 333 (2011) – United States Supreme Court
Key Issue: Enforceability of arbitration clauses that waive class actions.
Brief Summary:
The U.S. Supreme Court upheld the enforceability of arbitration agreements that prohibit class-wide arbitration, even if state law considers such clauses unconscionable. The Court ruled that the Federal Arbitration Act preempts state laws that obstruct arbitration agreements.
Significance: Strengthened the enforceability of arbitration clauses, even where state laws seek to limit them.
4. International Research Corp PLC v. Lufthansa Systems Asia Pacific Pte Ltd
Citation: [2013] SGCA 55 – Singapore Court of Appeal
Key Issue: Enforcement of arbitration agreements in multi-tier dispute resolution clauses.
Brief Summary:
The court upheld a multi-tiered dispute resolution clause requiring negotiation and mediation before arbitration. It held that such clauses are enforceable if the pre-arbitration steps are clearly expressed and condition precedent is met.
Significance: Promoted structured ADR frameworks (negotiation → mediation → arbitration) in commercial contracts.
5. Dallah Real Estate and Tourism Holding Company v. Pakistan
Citation: [2010] UKSC 46 – UK Supreme Court
Key Issue: Recognition and enforcement of international arbitral award.
Brief Summary: The UK Supreme Court refused to enforce an ICC arbitral award made in France against the Government of Pakistan, finding that Pakistan was not a party to the arbitration agreement. The case emphasized the need for consent in international arbitration.
Significance: Reinforced the principle of party consent and limited the scope of binding non-signatories in arbitration.
6. Western Digital v. Hitachi
Forum: ICC International Court of Arbitration
Key Issue: Use of ADR in complex intellectual property disputes.
Brief Summary:
Western Digital and Hitachi agreed to resolve a multi-billion dollar IP and trade secret dispute through binding arbitration under ICC Rules. The tribunal issued a comprehensive award, resolving cross-licensing and damages.
Significance: Demonstrated ADR’s efficacy in resolving high-stakes, transnational corporate disputes.
7. Gao Haiyan & Another v. Keeneye Holdings Ltd.
Citation: [2012] HKCA 63 – Hong Kong Court of Appeal
Key Issue: Enforcement of mediated settlement agreement.
Brief Summary: The Court examined whether a settlement reached through mediation (with some elements of evaluative mediation) was enforceable. Although initially questioned, the Court of Appeal held that the agreement was valid and enforceable.
Significance: Supported hybrid ADR mechanisms (mediation-arbitration) and enforceability of mediation outcomes.
8. Gilmer v. Interstate/Johnson Lane Corp.
Citation: 500 U.S. 20 (1991) – United States Supreme Court
Key Issue: Arbitration of employment discrimination claims.
Brief Summary:
The Court held that claims under the Age Discrimination in Employment Act can be subjected to arbitration if there is a valid agreement, reinforcing that statutory rights can be arbitrated.
Significance: Opened the door to widespread use of arbitration in employment disputes.
9.Mitsubishi Motors Corp v. Soler Chrysler-Plymouth, Inc. ,
Citation: 473 U.S. 614 (1985):
Key Issue: Upheld arbitration clauses in international commercial contracts.
10.Sulamérica Cia Nacional de Seguros S.A. v. Enesa Engenharia S.A .
Citation: [2012] EWCA Civ 638:
Key Issue: Emphasized party autonomy in arbitration agreements.
PAKISTANI CASE LAW ON ADR
1. Hub co v. WAPDA
Citation: PLD 2000 SC 841
Key Issue: The Supreme Court emphasized the importance of arbitration clauses and upheld the validity of international arbitration agreements. The case was decided under the ICC rules. Three arbitrators were appointed and by consent of all three one was appointed as presiding arbitrator.
2. Medhi K. Lavji v. Province of Sindh and others
Citation 2010 MLD 561 Karachi.
Key Issue: The agreement between Petitioner and local government was regarding tenancy of Government land (illegally agreement). The Provincial Government has Issued letter and cancelled the tenancy. High Court observed that despite of the fact that tenancy agreement contains Arbitration clause but since letter issued by the authority was not party, hence matter was not referred to Arbitration. The Petition was dismissed in limini on the basis that agreement was illegal and incompetent hence terms and conditions were not having legal effect including arbitration clause.
3. Pakistan Steel Mills Corporation v. Messrs Razo (PVT.) Ltd.
Citation PLD 2010 Karachi 390
Key Issue: Arbitration Award was held binding upon the parties to the arbitration but not other defendants. The Award should be to the extent of the subject matters which were referred to the Arbitration only but not other issues. The Suit against the rest of the defendant and on rest of the issues would continue.
4. Rarzana Rasool and 3 others v. Dr Muhammad Bashir and others
Citation 2011 SCMR 1361
Key Issue: held that Family court was not precluded to refer the matter to Mediation, Arbitration or third party for settlement.
5.Lakhra Power Generation Company Limited (LPGCL) v. KARADENIZ POWERSHIP KAYA BEY
Citation: 2014 CLD 337
Key Issue: where an State is member of International convention on the Settlement of Investment Disputes between (ICSID Convention) and also party to Bilateral Investment Treaties (BITs) containing Arbitration clause, then such State or the investor can accept and take any dispute between parties to the arbitration in terms of Article 36 of ICSID Convention.
6.FAL OIL Company Ltd. V. Pakistan State Oil Company Ltd. And others
Citation PLD 2014 Sindh 427
Key Issue: The award in arbitration by parties is binding upon them. In cases of irreparable loss injunctive orders may be passed by the court.
INFORMAL ADR (JIRGA OR LOK ADALATS)
In Pakistan both formal and informal ADR systems prevail. Formal ADR is having legal cover and sanction e.g. arbitration, mediation, negotiation and conciliation. The informal ADR system is known with different names in different areas and in different communities. It is generally known as Jirga , however it is also known as Panchayat . In Sindhi language it is also called FAISLO . The informal ADR system is deeply rooted in tribal, rural and customary communities. The elders of the informal council or leaders of the community gather to resolve the deputes by consensus. The word Jirga is generally used in Pashtun traditions in Pakistan and Afghanistan. In Sindh the same tradition is known as FAISLO. In some Baloch and most of the Punjabis societies the word Panchayat is used. The Jirga Trials under the West Pakistan Criminal Law Amendment Act, 1963, were permissible and legal. However, later on such trials were declared to be illegal in Pakistani legal system. In the year 2004 in a case filed by Shazia Mangi and Ehsan Chachar, the Sukkur Bench of the Sindh High Court has directed the local police to take appropriate action to prevent jirga within local limits of their jurisdiction. In the year 2005 section 310-A PPC was added after a remarkable decision of the court wherein private Jirga on Karo-Kari was held illegal as discussed hereinabove. It is commonly observed that Jirga is held in Family disputes pertaining to marriage, Divorce, custody of minors, conflicts in property issues and property related other issues, land disputes, water disputes, Honour-related matters, sudden fights among members of society and financial disputes. In criminal matter, more particularly in connection with theft, murder and adultery disputes, private settlements are made in almost all societies where norms of the community are considered primarily for deciding the matter in issue. This type of ADR is not recognized under the constitution or any other statutory law in Pakistan. However, after holding Jirga or private ADR, parties do not pursue or support the cases already registered and pending in the courts. They generally do not give the required standard evidence nor produce important witnesses to support the case. Resultantly, the accused facing trial, are extended benefit of doubt and acquitted. However, in civil matter the private ADR is considered and matters are decided accordingly. After education, awareness and access to social media, the common man is invoking his legal and fundamental rights by approaching the court of law. However, it is also observed by the courts that some people are exploiting such rights by bringing false and fake petitions. The Sindh High Court, Larkana Bench has not only dismissed the constitutional petition No.1447 of 2011 vide order dated 23.08.20211, filed by the petitioner but also imposed costs of Rs.12,000/- to be paid by the petitioner to the respondents, who were elders and notables of the community, for bringing false allegations against them . Initially when trend of freewill marriages was getting its roots in the society, the petitioners used to invoke the extraordinary constitutional jurisdiction of the High Court. It over burdened the High Courts. The Sindh High Court has then decided to dismiss all such petitions bearing CP No.D 2149 of 2015 etc , with directions to approach the Justice of Peace for protection against pressurizing to hold Jirga in such matters. The Supreme Court of Pakistan in the case of the National Commission on Status of Women v. Government of Pakistan has held that jirgas are illegal and in violation to the International Human Rights Laws. The Jirga system is in sheer violation of the International Covenant on Civil and Political Rights (ICCPR) Article 14. Article 14, of ICCPR, states that there should be a right to a fair, impartial, independent, legally established tribunal which is competent to decide the issue. The Convention on Elimination of All Forms of Discrimination Against Women (CEDAW) also prohibits all customs and practices that discriminate women in any manner whatsoever. The Jirga decisions in Honor Killings, Forced Marriages and other such customs are against CEDAW. In the Universal Declaration of Human Rights (UDHR), the right of hearing is provided. In its Article 10 the right of hearing is given, whereas in most of the Jirgas, the victim or accused is not heard rather elders sit and decide the fate of matter in issue as per customs. The convention on the Rights of the Child (CRC) ensures protection of children from harmful traditional practices. The forced child marriage, against a Karo-Kari and other like traditions Vani and Sawara are against CRC. The Governments in Pakistan are endeavoring to promulgate the laws. In Sindh the Childe Marriage Act was promulgated where offences were made punishable. The United Nations Human Rights Committees have frequently criticized the governments and advised to improve Human Rights status in the respective member states. In Pakistan certain enactments are made to regulate or replace the Jirga system. In Khyber Pakhtun Khuwa (KPK) province, the FATA interim Governance Regulations, 2018, KPK Local Government Act, 2013, Punjab ADR Act, 2019, Sindh Child Marriage Restraint, Act, 2013 and other like acts were passed to ensure that Jirga system should not prevail anymore in Pakistan. Since the roots of Jirga system are very deep in the society, hence the steps taken by the Government of Pakistan may take many years to come to eliminate the Jirga system.
WHY JIRGA SYSTEM?
The Jirga system is preferred as it is cheap and no expenses are incurred upon invoking jirga. There is no formal litigation expenses, no engagement of advocate/ lawyer, and no court fees. There is no limitation which bars the holding jirga for any matter. It does not matter as to whence the occurrence took place. In remote areas of the country, the Jirga is held easily, hence there is no bother to travel just for justice to a court of law which only situate in a particular area. The community recognizes the decision and holding of jirga. The Jirga system has not no punitive punishments generally. The women and girls has no interference in the jirga even if she is a victim to the incident. There are no formalities in Jirga system hence most people prefer it due to simplicity of the decision. The decision is acted upon forthwith without any execution process or without adopting any coercive measures as is done in formal litigation. The tribal people usually prefer the Jirga System due to political influence upon government agencies for seeking justice. The effectiveness of the formal legal system is deemed to be not compatible with their societies. There is privacy and confidentiality in the jirga process thus people prefer their domestic and honor related disputes to the Jirga. There is no written verdict of head of jirga. The terms and conditions are set as per traditions and culture of the community.
RECOMMENDATIONS FOR EFFECTIVE IMPLEMENTATION
Legislative Reforms:
The first and foremost step to be taken by the government of Pakistan is to introduce new legislation compatible with international laws and requirements. The outdated laws should be replaced with new laws which should elaborate and define all sorts of ADR clearly. The Arbitration Act, 1940 may be replaced with modern legislation aligned with UNCITRAL. The rules of procedure, standard operating procedure should be developed to compete with international laws and practices. The reforms should include the recognition of private ADR in explicit terms like the Court-Annexed ADR system. The enforceability of awards and settlements be provided in the formal legislation. The Government should register and regulate the ADR institutions under laws. The institutionalization of ADR shall be more supportive to curb backlog of cases in the courts. The standards for panelists’ accreditation may be formalized and such SOPs may be introduced for working of the institutions under ADR. The institutional rules of procedures, Fee structures for third party, monitoring, and reporting system may also be introduced in the new legislation so that check and balance and effectiveness of certain institutions may be monitored. Laws may also be introduced to integrate the ADR in certain Family case and compoundable or minor criminal cases can be solved through mediation. Though the Juvenile Justice System Act, 2018 provides provisions for disposal of cases through diversion but it is not so effective practically. The government may formulate certain standards and rules regarding the cases which can be decided through diversion process. The local government ADR system may also be helpful in solution of the disputes and differences at local level and may ensure peace and tranquility. The Local Government ADR system can only be promoted by way of legislation. The Local Dispute Resolution Councils (DRCs) exist in KPK but have not uniformity and legal strength, which require further deliberation.
Training
ADR is increasingly being recognized by masses in Pakistan to combat the judicial backlog and to improve justice system. The amicable solution of disputes is encouraged by ADR. It is necessary to improve capacity building, awareness and skill-set to all concerned who are directly and indirectly linked with the ADR. The lack of training is one of the hurdles to effective implementation of ADR. The importance of training cannot be denied at any level. The key stake holders are the Judiciary, lawyers, Law enforcement agencies, Mediators, arbitrators, Administrative officers and in few cases the parties to the disputes. The training shall bridge the gap between stake holders. The limited understanding of ADR may raise some difficulties to the stake holders and parties. The training may improve interpretation and application of related ADR laws. The awareness of procedural safeguards and enforceability may ease through trainings. The training shall also build trust on process of ADR as the stake holders shall be able to give high quality performance and show professionalism amongst the parties. Since the judges play key role in ADR system as the cases are sorted out and referred to the ADR, hence training of judges is most important. The Advocates view the ADR system as a potential threat to their profession and their income. It is necessary that the lawyers, through concerned Bar Council, may be trained and sensitized regarding benefits of ADR. The lawyers play key role to make their clients understand the benefits of ADR at early stage of proceedings. It would not be out of importance that such long term trainings for lawyers may be arranged, with graduation certificates. Such certified, trained lawyers may be appointed as conciliator, mediators and arbitrators. Legal Education and training in a uniform system may be introduced. The supporting public sector and administrative officers also required training. Police, SECP (for corporate sector ADR), Taxation officers, Customs Officers are also key players in ADR, hence their training may also improve the sector. The Judicial Academies shall be key points to arrange such training programs. The exchange programs among the judicial academies may also improve ADR system. The sharing of expertise by different area judges shall improve the system. Other training institutes may also play their role in the specified sectors. The certification programs for mediators, arbitrators and conciliators will be helpful. The cost of trainings may be made effective if online programs for interprovincial coordination are held. The Federal Judicial Academy has sufficient expertise to connect all area judges and other stake holders for scheduled trainings on ADR.
Institutional Support
Institutional support to ADR is necessary. The government may provide a system of ADR from Local and union council level. Establishment of ADR centers in all districts with professional mediators and arbitrators will improve the institution of ADR. The parties at local level may approach or may be referred by the concerned court to local ADR. These local ADR centers should be equipped with basic infrastructure for holding meetings and briefings of parties to facilitate them to reach at an agreed point.
Public Awareness Campaigns
Public awareness programs are as much important as establishment of institutions. The benefits of ADR and its fruitful results must be made aware to the masses so that the trust level can grow. The awareness may attract people to resolve the dispute through ADR. Educate the public through media and bar associations about ADR’s benefits. The myths and other negative propaganda against ADR is to be reduced on one hand and on the other hand positive side of ADR may be shown through public awareness. The media and other sources can benefit for such campaigns.
International Collaboration
Mutual cooperation with international communities through State to State relations may also be beneficial to strengthen the institution of ADR. Engage with international arbitration bodies for training and standard-setting may enhance expertise and enlighten the dark sides of country’s policies towards ADR.
Encouraging Corporate ADR
The corporate sector agreements should include the ADR clauses to be preferred in cases of differences arising out of the contractual obligations. There should be encouragement process in companies to include arbitration and mediation clauses in all contracts including the contracts with labor. Such trend may also be beneficial to reduce flux of litigation towards the courts for conventional trials, appeals and even constitutional petitions.
CONCLUSION
ADR offers an effective, efficient, and equitable alternative to traditional litigation. While Pakistan has made some progress in adopting ADR mechanisms, significant reforms are needed to mainstream its use in civil, family, contractual and corporate litigation. By learning from international best practices and implementing necessary legal and institutional reforms, Pakistan can transform its justice system to better serve the needs of its people and businesses.
****The End***
|