How can rule of law triumph in Pakistan?

It is undeniable that access to justice is critical to establishing rule of law and security within and beyond borders. Alternative Dispute Resolution (ADR) can help litigants achieve true justice that works to the benefit of both parties, simultaneously reducing courts' burden to ensure that highest quality and judicial standards are withheld in the small number of residual disputes that the courts have to decide.

In Pakistan there is a need for an ADR-based legal system that works in tandem with Pakistan’s current legal system to provide speedy access to justice through court appointed third party mediators, arbitrators and other neutrals to resolve cases without the need for litigation.

What takes litigation and the courts to resolve in 10 years, mediation and other forms of ADR can resolve in 3 hours.

During my career, I have come across cases pending before courts for decades — simple cases such as a pension claim, which took the current court system 40 years to resolve. By the time the pension amount was paid, the money had lost its value and was no more than a moral victory.

Most civil cases such as pension, property claims, employment disputes, and commercial issues do not even need prolonged, expensive, court battles to resolve. It is only in the absence of any other legally binding mechanism that individuals and businesses are forced to take the route of litigation.

In the fights between people and parties, usually, the only people who benefit are the lawyers. The remedy obtained for litigants (the aggrieved parties) is often too little and too late.

Most cases before the Pakistani courts today can be resolved through professional mediation and ADR modes as people are tired of waiting for justice. You and your children need not wait for years before you see justice. All that is needed is an effective mechanism to ensure a resolution and the agreement reached is binding.

Our present legal system is adversarial and based on establishing the wrongs and rights in a dispute, which can quickly escalate toward inflicting harm through prolonging court proceedings. ADR, however, looks towards finding an amicable enforceable middle ground between parties.

Currently, Pakistan’s legal system is broken.

Access to justice and time sensitive justice is simply not possible for the average citizen.

The statistics are alarming. We are globally ranked 118 in civil justice. There are 2 million pending cases in the courts of Pakistan and over 45,000 cases pending before the Supreme Court alone. Small contractual disputes take over 1,027 days in Punjab, commercial disputes 14 months, and by a study conducted in 2019, 54% of the studied civil cases took 3 or more years to resolve.

Our broken legal system is also a major reason why Pakistan is ranked 108 in ease of doing business by the World Bank — a direct implication of a legal system that cannot resolve commercial disputes effectively and in time.

For countries desperately in need of foreign direct investment and business creation, access to justice plays a major role in establishing a conducive economic climate. In fact, our justice system is a major reason why foreign investors are deterred from large, long-term investments.

The major problem within our court system is the unnecessary number of cases which are pending before the court that do not require litigation to be resolved. However, they cannot be resolved in any other way because these issues still need a mechanism of enforcement to keep all parties honoring the agreement. Currently, litigation is the only widely accepted method for parties to seek resolution of their issues.

This is where ADR comes in, specifically, Court Annexed ADR, in which the court directs the parties to the ADR center to resolve their dispute through amicable means with the assistance of a facilitator trained to resolve conflicts.

The agreement reached by the parties is recorded by the directing court as rule of the court and given a binding force. This approach, used across the world, enables parties to reach speedy resolutions, significantly reduces the costs of the parties and the court in conducting trials, and reduces the burden on the court to resolve issues that can easily be decided amongst the disputing parties through facilitation from trained neutrals.

The ADR system works in tandem with the justice system offers the prospects of reducing delays and improving access to justice.

ADR offers specially trained neutrals/mediators, expeditious out-of-court settlement, and binding agreements enforceable through the court's order or solutions devised by the disputing parties themselves.

Even in Islamic Jurisprudence, ADR is a preferred method of grievance redressal.

ADR plays a crucial role in preserving the relationship between aggrieved parties. Thus, family, commercial and community disputes are amongst the disputes that could benefit most from the ADR processes.

It provides parties autonomy in resolving and devising solutions and results in the preservation of relationships but has a significant cost-saving effect at an individual level.

To individuals, ADR offers a promising solution to the shortcomings and delays inherent in the Pakistani legal system.

For businesses, ADR offers its own solutions through speedy processes and resolves in a matter of hours issues that take approximately 1024 days in courts in Punjab, according to one study.

An increase in security to investors leads to enhanced economic activity, foreign investment, and sustainable economic growth. All plus points for a country struggling to attract foreign investment, with one of the leading issues being the safety of the investment.

And for the Pakistani courts, it reduces an immense burden of pending cases while preserving the writ of the court and its judgements onto all parties. A winning formula for all concerned.

So, where do we stand? ADR universally is accepted as an effective legal form of dispute settlement. How do we formalize this system in Pakistan?

In the past few years, various initiatives have attempted to introduce ADR methods in Pakistan. There has been a legal momentum towards ADR provisions in the Federal and provinces, resulting in ADR laws being introduced besides initial ADR provisions in multiple laws.

Despite the efforts of Non-Profit Organizations (NGOs) and the legislature, the level of knowledge and use of ADR continues to be insufficient.

The sporadic efforts of single persons and organizations have had only a transitory effect. Thus, lack of information about the dispute resolution systems, other than litigation, and a center with the capacity to provide the required services has restricted people and businesses from using the whole spectrum of dispute resolution methods.

Over the past few years, however, the superior courts have embraced the idea of facilitating the use of ADR, and Punjab has established various centers in courts to resolve disputes through mediation cases referred by the judges. Founded on a purely voluntary basis, the initiative has evolved, setting an outstanding example for successful cooperation among judges.

What we require now, is formalizing this system. It requires setting up an ADR center, working across legal and political lines to connect it with the formal court system.

To do this, the centre International Centre for Appropriate Dispute Resolution and Prevention–ICADRP has been established to provide a model based on international best practices but in line with the cultural and religious dictates suitable for Pakistan. ICADRP will provide a model and build capacity amongst stakeholders such as lawyers, judges, parliamentarians, civil servants, and students.

The center aims to facilitate institutionalization of ADR to provide a sustainable system regardless of the change in governments and judges.

The ultimate objective of the Centre is to introduce efficiencies in the legal system, providing ADR through the latest solutions at every doorstep, increasing access to justice for all, including the marginalized, in particular.

The article does not necessarily reflect the opinion of Business Recorder or its owners