Chief Justice Nazim Hussain Siddiqui has called upon the legal and judicial fraternities to "work on methods of alternate dispute resolution" which if successfully practised "will certainly enhance access to justice".
Addressing a large assembly of Judges, lawyers and under-training judicial officers of National Judicial Academy here on Saturday, the Chief Justice said that in the foreign context, alternate dispute resolution (ADR) was a generic term.
He said there it referred to practices that led to quick resolution of conflicts through out of court settlements through arbitration, mediation, conciliation, early neutral evaluation or facilitations.
But in Pakistan, it was relatively a new term for dealing with an age-old problem of expensive litigation.
The Chief Justice, who was delivering his keynote address at the one-day seminar organised by Pakistan Supreme Court Bar Association at the Supreme Court auditorium, explained that in broader sense, ADR offered advantages like quick resolutions of dispute through flexible procedures which were cost-efficient and brought about greater amity and understanding among the parties.
The mechanism, he said, offered significant relief to the courts and increased access to justice for people who could not use court systems besides offering wide range of remedies to suit the dispute.
Justice Siddiqui said that the system was being practised successfully in advanced countries such as UK and USA. In Britain, in the aftermath of Lord Woollf's report on the Civil Procedure, and following enabling changes to Civil Code, the ADR had become an important tool and is mandatory before the parties commence litigation.
In Pakistan, according to the Chief Justice, there are numerous laws which provide for alternate dispute resolution among which he cited the Muslim Family Laws Ordinance of 1961, Family Court Act of 1964, the Conciliation Courts Ordinance of 1961.
At the recommendation of the Law and Justice Commission, the Federal Government two years ago had amended the Code of Civil Procedure of 1908, adding section 89A which empowered courts to adopt, with the consent of parties, methods for dispute resolution.
The same year, the Government also promulgated the Small Claims and Minor Offences Ordinance, prescribing summer procedures for trial and out of court settlement of disputes through arbitration or mediation.
Necessary legal framework for ADR in Pakistan, the Chief Justice said, has been laid but regretted that the common malady was that the laws were made but not fully implemented.
The ADR, he stressed, requires not mere legislation but several other measures for its implementation including the orientation and training of the judges, motivation of the lawyers to persuade the clients and also public awareness.
In a very detailed paper on the background of the alternate dispute resolution, Justice Iftikhar Muhammad Chaudhry concluded by making eight recommendations to the Government urging it to create a committee under the Chief Justice with representatives of the legal profession that should introduce measures to avoid delays in disposal of cases. It should also suggest measures for imparting inexpensive justice in the light of law commission reports, he added.
He also suggested increase in the number of civil and criminal courts to clear backlogs and current pending cases and review conciliation courts and revise their jurisdiction.
An important suggestion made by him was for "in-built provisions of pre-trial and post-trial conciliation proceedings in all procedural laws, amendment of the Arbitration Act to make it simple and free from technicalities.
Justice Chaudhry also underlined the need for steps to build "cohesion between courts and lawyers" for co-operation in solution to delays in disposal of cases, re-activation of Free Legal Aid Committees and, above all, national legal education policy under which students on merits be accepted for legal education, rather by default.
In his address, Tariq Mahmood, President of Pakistan Supreme Court Bar Association, spoke of "huge pendency of cases in courts, low strength of judges, particularly in the subordinate forums, costs of litigation and distance between the place of residence and the location of courts, language barriers" and also "extremely low salaries".
Another factor that had added to malady, Tariq pointed out, was the "integrity and calibre of judges, mode of their appointment, lack of commitment among them and also lack of knowledge and interest by the subordinate judges and lawyers in screening out false and frivolous cases.
He criticised the "integrity and calibre of state counsel" and criteria of their appointments, discrimination against women and oppressed classes and stigma surrounding certain crimes made it look as if for the common man access to justice was almost impossible.
He deplored the "rampant corruption, favouritism and nepotism in the judiciary as well as the legal community" which had made the legal system uncaring, non-accountable and formalistic. At the most, the Bar chief observed, it delivered formal or technical justice and it was oblivious of the suffering and woes of litigants of their waste of money, time and energy.
He hoped that the deliberations of the Seminar and the eminent personalities who were to address it would be able to suggest how to save and strengthen the existing system and steps required for the release of burden of the courts.
The seminar was also addressed by retired Supreme Court Justice Khalil-ur-Rahman, Hamid Khan, Justice Mian Allah Nawaz Khan, Shabbar Raza Rizvi, Advocate General, Punjab, Karachi lawyers Nevin Merchant and Abrar Hussain and Qazi Muhammad Anwer, Vice Chairman Pakistan Bar Council.
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