Alternative Dispute Resolution mechanisms (ADR) have been useful in resolving diverse disputes by providing speedier decisions but to be truly effective in our society it is necessary to create conducive conditions by taking all stakeholders of justice system on broad”, said Mr Justice Tariq Parvez, Judge, Supreme Court of Pakistan, on Saturday.
He was speaking during the certificate awarding ceremony at the conclusion of a one-week training course on “Skill Based ADR Training and New Laws” for Civil Judges-cum- Magistrates from all over Pakistan, Azad Jammu and Kashmir and Gilgit-Baltistan at the Federal Judicial Academy.
Regarding trainings he said, “These trainings not only enhance trainees’ legal knowledge and competence but also give them a proper understanding of different cultures in the country. These trainings also promote professional bond among trainees and national integration. I always believe that the competent and conscientious performance by judges is the most effective way to maintain respect for the rule of law and enhance prestige of the judiciary.”
Advising the young judges he said, “All of you must have a high conceit of the importance of your office. Always strive to uphold the highest standards of personal and professional behaviour. Always try to be ethical and role model in your behaviour both in the courtroom and outside the courtroom and also in your judgement writing.”
Earlier, Fakhar Hayat, DG of the Academy, presented his welcome speech and an overview of the training course. “Apply knowledge and skills, whatever you have learned during the training, and administer justice according to law and you will have a life of tremendous satisfaction,” he emphasised. Twenty-six participants, out of them six females, who benefited from this training, were given certificates in the ceremony at the Academy.
Published by: Business Recorder
JUSTICE UNDER THE SHADOWS OF GUNS AND THREATS IS UNACCEPTABLE
A few weeks ago, the donkey cart of two brothers mistakenly collided with vehicle of an influential person in Nushero Feroze, Sindh. Things got escalated and to resolve the matter, a Jirga sat and pronounced a shameless verdict whereby both the brothers were forced to chew “chapals” in their mouth and apologise to the owner of the vehicle. Recently, 16-year-old Ambreen in the village of Makol, District Abbotabad was drugged and hanged to death upon the edict of a local Jirga as punishment for assisting an elopement. Subsequently, her corpse was set ablaze; the image of her cooked body was beyond identification and too horrendous to digest. Few years back Mukhtaran Mai in Muzafar Garh faced the fury of Jirga decree which ordered her organised gang rape. Her only fault was that her brother was found involved in a relationship with a woman of an influential local tribe.
These aforesaid atrocious incidents of Jirga justice are not new in Pakistan, myriad of people have suffered due to this deep rooted and antediluvian system of informal justice. Innumerable women have been killed, mutilated, raped, paraded unclothed and swapped in marriage, as payback or in compromise for wrongdoings normally committed by their male kin. These ignominious rulings have made us all bend our heads in humiliation; they reflect collective depraved wisdom of self righteous and self appointed judges. It seems like that women have been branded into tools of dispensing justice for violation of both the formal law and notions of morality.
Unquestionably, currently prevalent Jirga system in Pakistan is elite, patriarchal and misogynistic. The reason why Jirga edicts are frequently against women and especially against those belonging to poor class, can be best understood if composition of a Jirga is evaluated. The composition is inherently prejudicial, firstly it comprises only influential people like waderas, sardars and chaudhrys of a particular locality and secondly, representation of women in Jirga is zero. Under such circumstances, there is always a strong probability that the judges will provide cover to their affluent friends/ relatives and decide against the poor especially the women.
The greatest paradox is that the police and civil administration have always patronised and encouraged Jirgas instead of taking action. The local law enforcing agencies are happy if the crimes are not reported and are settled informally. In order to protect their vested interests, the feudal lords, politicians, police, bureaucracy and parliamentarians, all have cahooted together to keep the Jirga system active and thriving.
Justice delivered by Jirgas contravenes not only moral scruples, but also flout the notions of due process of law and protection of fundamental human rights. Jirgas follow neither formally codified procedural nor properly defined substantive law; in fact they deliver edicts in a capricious manner deeply influenced by male chauvinism, tribal ignorance and feudal prejudice. A woman accused of committing honor crime is not provided a chance to prove her innocence, thus the universally recognised principle of natural justice that ‘no one should be condemned unheard’ is blatantly sullied. In addition to that, the decisions of the Jirga are considered final and regrettably there is no mechanism of appeal if one is not contented with the pronouncement. Another legal flaw is in the enforcement mechanism of Jirga edicts i.e they are enforced by private individuals, who while implementing the so called diktats act as if they are completely oblivious to the fact that they are dealing with humans not animals.
Arbitrary decisions of existing Jirga system breach major constitutional provisions as provided in Constitution of Islamic Republic of Pakistan 1973.Article 4 provides the right to be treated in accordance with law, Article 9 provides the right to security, Article 10-A provides the right to fair trial, Article 14 provides the right to inviolability and dignity and Article 33 discourages parochial prejudices. The superior courts while interpreting the said provisions have given them a very wide meaning and have time and again declared the provisions to be of overriding and mandatory nature. However, it seems like these constitutional protections only exists in theory as far as their applicability to rights of those adversely affected by Jirga edicts is concerned.
Article 175 of the Constitution lays the basis and foundations of our judicial system, and provides that no other institution, unless established by the law, shall exercise the adjudicatory powers of a court. It means Jirgas except those functioning in FATA and PATA, are manifestly unlawful and they operate outside the judicial ambit as envisaged by the Constitution. This provision has been consistently interpreted by the superior courts exactly in line with the intention of the legislature and its best construal was produced by Sindh High Court in case cited as SBLR 2004 Sindh, 918. In the said case, the court gave a landmark judgment by declaring the Jirga system unlawful, unconstitutional and violative of fundamental rights whilst relying on several judgments of the Supreme Court.
Opponents of Jirga system assert that this parallel system of justice is ruthless, immoral, illegal and unconstitutional and demand its complete abolition. However, some support its existence subject to the condition that it must be reformed in consonance with system of Alternate Dispute Resolution (ADR). The idea of completely banning Jirga system, both in theory and practice is not viable and in-appropriate for two reasons. Firstly, it must be remembered that Jirga system is a centuries old tradition deeply embedded in our socio-cultural environment and cannot be eliminated instantly.
Secondly, our failing and burdened judicial system already struggling to prove its relevance will collapse as proscribing Jirgas will open flood gate of frivolous and unnecessary litigation. It needs to be understood that our judicial system has failed to deliver; this is one of the major reasons behind consistent relevance of Jirgas in our society. The inaccessibility and delays in the dispensation of justice by the formal legal system compel individuals to seek recourse through a quicker and less complex mode of dispute settlement. Huge backlog of pending cases in courts, scarcity of judges, rising expenses of litigation, inordinate delays, corruption and inefficiency are major factors responsible for failure of our judicial system.
Rather than banning Jirga system completely, it will be more apposite that the lawmakers shall introduce its reformed version like ADR and integrate it in our formal judicial system. Some reforms in Jirga system which can be suggested are that, the law must provide the parties right to appeal to the District and Session judge if they are not happy with the verdict of the Jirga. The members of Jirga must be well reputed, educated and sane individuals and shall be notified by the local government. In case of non compliance with edict of Jirga the private individuals shall not be allowed to enforce the decisions in fact an application to District and Session judge shall be made who may order the police to ensure compliance. The jurisdiction of Jirga shall be confined to civil matters or petty criminal offences (offences having imprisonment of 12 months or less), rest of issues shall be decided by formal courts. It should also be clearly defined that Jirga verdict should not affect people other than the guilty.
Current form of Jirga system is a ruthless malaise whereby justice is dispensed under the shadows of guns and threats, it deserves to be outlawed and wiped out, however, it needs to be substituted with a reformed version wherein the proceedings shall be governed by uniform and clearly defined adjudicatory rules. This way not only the arbitrary edicts based on whims, enmity and caprice will disappear but also the ever increasing burden on shoulders of formal judicial system will soothe down. Reformed and officially regulated edition of Jirga system in form of arbitration, mediation and reconciliation can do wonders, same way ADR has revolutionised and supplemented the judicial system of UK.
Published by: Pakistan Today
By Ebrahim Saifuddin
In a recent move by the National Assembly’s Standing Committee on Law and Justice, the bill introduced to increase the number of Supreme Court Judges was rejected. It is without doubt a fact that the solution to reduce the pendency in the courts is not to simply increase the number of judges. Aiming for quantity often forces one to compromise on quality. This issue therefore needs to be addressed multi-dimensionally.
In his statement to the Committee, the Minister of State for Law and Justice, Barrister Zafarullah Khan mentioned a “cost draft bill” in the making. The Bill will require people filing false petitions to pay the whole cost of the case.
However, it is not certain how the frivolous nature of the case is to be determined and at what stage of the case. Such an exercise has to proceed before conclusion of the case and some mechanism has to be devised for taking security of the cost by the party responsible for bringing in Court the frivolous action otherwise the whole exercise will be rendered ineffective.
LAHORE – Lahore High Court Chief Justice Ijazul Ahsan yesterday said that the matters through Alternate Dispute Resolution (ADR) can be settled down at the preliminary stage. He said, however, no system could be made successful without the support of lawyers.
The chief justice expressed these views while addressing Annual International Conference on Alternate Dispute Resolution (ADR), 2016.
The CJ said that ADR is the need of the hour because it will help litigants save time and money to get justice. Under the supervision of judiciary, this system could be benefiting for the society, the CJ said. He also said that no system could be made successful but he hoped that the lawyers would play an effective role to make ADR system a success.
Justice Shahid Hameed Dar, Justice Anwarul Haq, Justice Mamoon Rashid Sheikh, Justice Muhammad Farrukh Irfan Khan and Justice Muhammad Qasim Khan were also present there in the conference held under the aegis of the Lahore High Court Bar Association at Karachi Shuhada Hall.
Chief Justice Ijazul Ahsan said that it was really appreciable that the bar understood the importance of ADR system and held an international conference on it. The CJ said the LHC believed that ADR must be made part of the judiciary so that a common man could also get benefit of it.
The chief justice said that Alternate Dispute Resolution system was also being established at district level.
“The day is not far when the people will get timely and inexpensive justice,” said the CJ. The CJ urged the lawyers to play their role to make this system successful to provide justice to the people at grassroots level.
Earlier, the international experts and members of the bar addressed the conference and shed light over the importance of ADR system in Pakistan.
Published by: The Nation
The NA body met under the chairmanship of Chaudhray Mahmood Bashir Virk. The meeting was attended by other members including Ali Muhammad Khan, Chaudhary Muhammad Ashraf, Mohammad Moeen Wattoo, Muhammad Raza Hayat Harraj, Rajab Ali Khan Baloch, Shagufta Jumani and Alisha.
The committee observed that the various stakeholders relating to the judiciary are not in favour of increasing the number of apex court’s judges.
The NA body underlined the importance to strengthen the lower court system to provide relief to the public. Minister of State for Law and Justice, Barrister Zafrullah Khan informed the committee that the ministry was preparing a cost draft bill in a bid to introduce reforms in judicial system. After the approval of the bill, the people filing false petitions would be bound to pay the total cost of the case, he said, adding that this practice would release a load on the lower courts.
MNA Dr Arif Alvi said laws are available; however, these need to be implemented. He said he had prepared a bill of mediation and arbitration that would reduce load on courts.
ISLAMABAD – Islamabad High Court Judge Justice Mohsin Kayani said that legislative process and law framing in Pakistan appear to be the product of ‘cut and paste’ psyche. He stated this while addressing the participants of the certificate awarding ceremony at the conclusion of a one-week course on “New Laws” here at the Federal Judicial Academy on Saturday. He stressed the need for the key players of administration of justice system to acquire knowledge, develop skills and abilities to promptly dispense justice to the litigant public.
Justice Kayani said: “The available evidences indicate that our legal and judicial system inherits the defects, deficiencies, distortions, loopholes and lacunas.” “All these faults make the judicial process complex and cumbersome and hinder effective administration of justice. We must reform our legal and judicial system to administer speedy justice to the litigant,” he added. Dwelling at length on the importance of new laws such as Enforcement of Intellectual Property Rights Laws, Protection of Women Against Violence, Anti-money Laundering Act, Cyber Crimes Environmental Legislation, Alterative Disputes Resolution (ADR), he encouraged the young judicial officers to use an Alternative Dispute Resolution procedure and facilitating the use of such a procedure and also use technology.
Presenting his welcome speech and an overview of the training course, Fakhar Hayat, Director General of the Academy said that the judges do not make law but only apply it. Therefore, you have to apply all laws and knowledge gained from here effectively to give relief to the litigant public.
At the end, the chief guest awarded certificates to the twenty-six Civil Judges-cum-Magistrates from all over Pakistan, Azad Jammu and Kashmir and Gilgit-Baltistan in the ceremony.
Published by: The Nation
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 Anti-Terrorism Act, and the Army Act and by the enactment of laws such as the Protection of Pakistan Act.
KARACHI: National Centre for Dispute Resolution (NCDR) has signed a cooperation agreement with the Istanbul Chamber of Commerce. As per the cooperation agreement the institutions shall establish cooperation for the purpose of offering Pakistani businesses operating in Turkey, and vice versa, a forum to solve their disputes arising out of commercial transactions, by using both institutions’ Mediation and Arbitration Centres.
Both institutions shall recommend to the natural and legal persons in its country, engaged in economic transactions between Pakistan and Turkey to insert a multi-tiered dispute resolution clause which shall call the parties in dispute to opt for mediation and only upon the failure of mediation, go for arbitration. NCDR and the Istanbul Chamber of Commerce shall cooperate in the advancement of mediation and arbitration in general, as a means of settling disputes arising out of international commercial transactions. Both institutions shall, upon request, recommend to each other suitable individuals to serve as arbitrator on a particular case or on the roster of arbitrators of an institution as well as assist parties involved in arbitration with the selection of the most suitable arbitrator, as to the qualification and integrity.
Published by: Business Recorder
Chief Justice, Anwar Zaheer Jamali on Saturday advised the critics to avoid unnecessary criticism over the judiciary, saying the main fault was with other factors prolonging litigations at courts. Speaking at a seminar on “Mediation: Improving Business Climate & Promoting Communal Harmony,” organised by the National Centre of Dispute Resolution (NCDR) held at a local hotel, he said that unnecessary criticism on the judicial system was inappropriate.
There is no fault in the existing judicial system, which is rather well-tested, he told the seminar participants and said that external factors associated with the very system were responsible for justice delays and prolonging litigations. “There is no doubt that litigation before the formal courts have their challenges and drawbacks,” Chief Justice said, adding that “in the circumstances, it may be more convenient and cost-effective for litigants to be provided with ‘alternative’ albeit complementary dispute resolution options”.
He said the lack of timely dispute resolution often contributed to escalating the minor issues into grave conflicts. “I wholeheartedly endorse the President, Justice Saiduzzaman Siddiqui’s view that citizens should be given a variety of options to resolve their disputes in a way that best addresses their interests and goals,” he said, adding that “I would therefore urge greater support and investment for both the formal justice sector and ADR to strengthen the rule of law in Pakistan”.
1. Access to Education
2. Access to Health
3. Access to Justice
If there is an absence of any of these services, the nation will retrogress instead of progress. While most are aware of the dire need to have access to education and health, few are aware of the importance of access to justice; it is but one of the fundamental pillars of Rule of Law. No access to justice means infringing a peoples’ basic human right – a right recognised by the entire civilised world. For a moment put yourself in the shoes of a woman who belongs from the lower stratification of our society who has been wronged. Court procedures will be tedious and require almost a decade and a half for any decision, legal fees may be burdening and the psychological stress would be overwhelming. Even if she received justice after a decade, can that really be termed, “Justice served”? Can the psychological stress ever be so compensated? Such questions we need to ask ourselves before we turn a blind eye towards the need to provide easy access to justice to the common man.
The question thus arises, how can we provide easy access to justice? The most common reply will be to provide free legal services, ie lawyers fighting legal battles free of cost. Moreover, one may argue, there are a number of non-governmental organisations that are offering free legal services to the needy people. Without a doubt, the civil society of Pakistan feels deeply for the bleeding motherland and is doing a remarkable job of offering free legal services. However, even if free legal services are provided, how does that resolve the time it requires in litigation for a case to be decided; then again, what about the routes of appeal? The path to an eventual final judgement in litigation and its execution is tedious, excruciating and cumbersome. Once again ask yourself, is this “Justice served”?
Alternative dispute resolution (ADR) is the need of the hour. There are many different mechanisms under the umbrella of ADR, namely, mediation, conciliation, neutral evaluation, arbitration, mini trial, MedArb etc. From all of these mechanisms, mediation is the most favoured and effective procedure to resolve disputes. Mediation is an interest-based process and not rights-based like litigation. In mediation an impartial third party facilitates negotiations between the disputants. The impartial party will assist the disputants in finding a win-win situation by addressing the core interests of the parties.
While litigation is adversarial, mediation addresses the needs of the disputants and the goal is neither to point fingers nor declare one disputant to be right and another to be wrong. It assists people in moving away from blame games and channel their energy towards finding a solution.
The benefit of mediation becomes evident; many may speak volumes on its cost-effective, timeefficient nature, and how it reduces the burden on the court system and albeit all such is true, I wish to point towards something of far greater importance – promotion of communal harmony and religious tolerance by repairing and building relationships. It is known that in Pakistan there are certain criminal offences which are compoundable ie where compromise is permitted during or after trial of the case. One such offence is “uttering any word or making any sound in hearing or making any gesture or placing any object in sight of any person with the intention to wound his religious feelings”.
If at this point, mediation is an option for the parties, this dispute shall not only be resolved but also create tolerance in both parties towards each other’s personal beliefs. On the flipside, if mediation is not an available option, the dispute will end up in court and the ramifications of the decision (imprisonment of one year or fine or both) shall reverberate for many years to come.
Mediation not only develops an understanding between the disputants with regards to the other person’s needs, it also is a platform which is completely confidential. Often families prefer to come for mediation as they know their privacy shall not be compromised. While court records are accessible by the public, NCDR ensures that case details including names of disputants are not disclosed publicly. Moreover, a dispute is generally resolved within a few mediation sessions as opposed to years spent in litigation.
A dispute must be resolved in the shortest time possible and at the earliest stages. If your dispute will linger on for years, it will add on to your stress level, aggression, animosity, acrimony and your general attitude towards people will change. While not only the mental health of an individual is at stake, people can also opt for frivolous litigation against the other party and even turn towards crime. In fact we have often received cases where the main dispute was just a small business conflict but it spiralled into such a serious affair that parties resorted to lodging criminal FIRs against each other. When put through mediation, many a times the businesses have continued on till even today and if the business is dissolved, the disputants still maintain a healthy relationship with each other – no bellicosity, hostility or bitterness lives in the hearts of the disputants.
What type of Pakistan do we envision for our generations to come? Should the people of Pakistan not have the option to go for mediation before spending years in litigation? It is our collective duty as citizens of this nation to promote this concept among the masses.
Published by: Business Recorder (Supplement)