Mediation vs litigation

I.A.RehmanTHE 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.

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. So far as the common citizen is concerned he has no objection to the objectives these phrases imply subject to only one condition — that justice must not only be done, it should also be seen to have been done.

Perhaps law reform has not been possible because of the absence of a parallel movement to uplift people’s culture, remove the disparity between the rich and the poor, close the gap between over-privileged men and underprivileged women, because, as they say, the law succeeds only among a law-abiding people.

Published by: Dawn