Me­di­a­tion vs lit­i­ga­tion

The Pak Banker - - 4EDITORIAL - I.A. Rehman

THE chief jus­tice of Pak­istan's ref­er­ence to the need for me­di­a­tion cen­tres should gen­er­ate a fresh de­bate on the de­sir­abil­ity of al­ter­na­tive chan­nels of dis­pute res­o­lu­tion and the prospects for their adop­tion. Jus­tice An­war Za­heer Ja­mali spoke for a ma­jor­ity of the Pak­istani peo­ple when he ex­pressed con­cern at un­due de­lays in the dis­posal of cases. That the law's de­lays are alien­at­ing the cit­i­zens from the jus­tice sys­tem is no se­cret. The sur­vival of the jirga sys­tem in var­i­ous parts of the coun­try, de­spite the su­pe­rior courts' re­peated stric­tures, is of­ten at­trib­uted to cit­i­zens' dis­en­chant­ment with the for­mal ju­di­cial sys­tem.

Also un­ex­cep­tion­able is the chief jus­tice's ob­ser­va­tion that the ju­di­ciary can­not be blamed for the weak­nesses of other in­sti­tu­tions in­volved with the ad­min­is­tra­tion of jus­tice, such as the in­ves­ti­gat­ing and pros­e­cu­tion agen­cies and the au­thor­i­ties re­spon­si­ble for im­ple­ment­ing the ju­di­cial ver­dicts.

How­ever, when the chief jus­tice said that there was noth­ing wrong with the time-tested ju­di­cial sys­tem he might not have been un­aware of the dents made in the sys­tem by ques­tion­able amend­ments in the laws, es­pe­cially in the Pe­nal Code, the An­tiTer­ror­ism Act, and the Army Act and by the en­act­ment of laws such as the Pro­tec­tion of Pak­istan Act.

It is also per­haps nec­es­sary to as­sess the dam­age done to the jus­tice sys­tem by in­ter­fer­ence with the se­lec­tion of judges by mil­i­tary rulers (and their ways of re­liev­ing un­help­ful judges) and by mak­ing the ju­di­ciary com­pletely in­de­pen­dent and un­ac­count­able. As re­gards me­di­a­tion in pref­er­ence to lit­i­ga­tion, the idea has never se­ri­ously been con­tested and also never se­ri­ously im­ple­mented, de­spite the fact that the Bri­tish had cre­ated room for it. Apart from pro­vid­ing for com­pro­mise in civil cases they had made many pe­nal of­fences com­pound­able. Then they had courts of small causes and hon­orary mag­is­trates for set­tling petty mat­ters.

Fi­nally the pan­chay­ats, which were quite ac­tive in Pun­jab till in­de­pen­dence, per­formed im­por­tant me­di­a­tory func­tions. In keep­ing with this tra­di­tion the Pun­jab Lo­cal Gov­ern­ment Act of 2013 pro­vides for a pan­chayat in each vil­lage coun­cil and for musale­hat an­ju­mans in city and mu­nic­i­pal com­mit­tees.

The Bri­tish had also ar­ranged for the quick hear­ing of mur­der cases by pro­vid­ing for as­ses­sors (com­mu­nity rep­re­sen­ta­tives) to sit with the ses­sions judges. This sys­tem was given up soon af­ter in­de­pen­dence per­haps be­cause af­ter the de­par­ture of the colo­nial rulers the com­mu­nity rep­re­sen­ta­tives had lost their qual­i­ties of pro­bity and sound judge­ment.

The Code of Crim­i­nal Pro­ce­dure pro­vi­sion for the ap­point­ment of jus­tices of peace is still on the statute book and all ses­sions judges (and dis­trict mag­is­trates in Balochis­tan) are des­ig­nated jus­tices of peace.

The de­sire to have mat­ters set­tled through me­di­a­tion in­spired the pro­mul­ga­tion of the Con­cil­i­a­tion Courts Or­di­nance in 1961 and the in­clu­sion of con­cil­i­a­tion pro­ceed­ings - at two stages - in the Fam­ily Courts Act of 1964.

In 2002, fairly sig­nif­i­cant moves were made to pro­vide for me­di­a­tion and speedy dis­posal of mi­nor cases. As pointed out by for­mer Chief Jus­tice Saee­duz­za­man Sid­diqui, who now pre­sides over a Na­tional Me­di­a­tion Cen­tre, Sec­tion 89-A and Or­der X Rule 1-A were added to the Civil Pro­ce­dure Code. Both al­lowed the courts to adopt, with the con­sent of the par­ties, me­di­a­tion and con­cil­i­a­tion pro­ce­dures.

More sig­nif­i­cant was the pro­mul­ga­tion of the Small Claims and Mi­nor Of­fences Courts Or­di­nance. Many civil mat­ters were placed un­der the exclusive ju­ris­dic­tion of these courts as well as all of­fences un­der the Pe­nal Code pun­ish­able with im­pris­on­ment for up to three years, with fine or both. If the par­ties agreed to me­di­a­tion, the courts could re­fer the mat­ter to a me­di­a­tor/con­cil­ia­tor/ar­bi­tra­tor and pass a de­cree or or­der in terms of the com­pro­mise. The law is still in force and gen­er­ally the pro­vin­cial gov­ern­ments have ap­pointed se­nior civil judges, civil judges and ju­di­cial mag­is­trates as courts un­der this or­di­nance.

Over the last few years there has been con­sid­er­able dis­cus­sion on al­ter­na­tive dis­pute res­o­lu­tion (ADR) in the Na­tional Ju­di­cial Pol­icy-Mak­ing Com­mit­tee and at an in­ter­na­tional ju­di­cial con­fer­ence or­gan­ised by the Supreme Court.

It is per­haps time that an earnest at­tempt was made to as­cer­tain why all the ef­forts to in­sti­tu­tion­alise ADR failed to bear fruit. We al­ready know that the pol­icy of mak­ing sub­or­di­nate judges re­spon­si­ble for ad­di­tional work - on sep­a­ra­tion of the ex­ec­u­tive from the ju­di­ciary, un­der the ju­ve­nile jus­tice law; or un­der small claims law - does not work. We also know that grow­ing class an­tag­o­nism has un­der­mined the pan­chayat sys­tem in vil­lages. And when one hears of pan­chay­ats and jir­gas giv­ing or­ders for a woman to be raped or a girl to be given away as vani, it be­comes im­pos­si­ble to re­tain the en­thu­si­asm for such agen­cies for set­tle­ment of dis­putes.

Un­for­tu­nately, ADR does not ap­peal to police and lawyers as it de­mands fi­nan­cial sac­ri­fices from both. The gov­ern­ment does not like the idea be­cause it en­joys fight­ing court bat­tles with its em­ploy­ees and cit­i­zens, ex­cept for NAB cases, and the so­cially ad­van­taged do not want to have com­pro­mises with the riff-raff. Thus the only pro­mot­ers of ADR are the judges and the less af­flu­ent peo­ple, by no means a win­ning com­bi­na­tion.

The ideas of le­gal re­form in Pak­istan have largely re­volved around at­trac­tive catch­words. The mil­i­tary rulers launched re­frains about speedy and in­ex­pen­sive jus­tice, the ju­di­cial au­thor­i­ties have been fond of ADR and now the buzz­word favoured by se­cu­rity lords is de­ter­rence at any cost.

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