Draft laws for speedy, inexpensive justice in NA finally after 3.5 years

ISLAMABAD: It took the Nawaz Sharif government almost three-and-a-half years to prepare and present before the National Assembly two draft laws, which once enacted and implemented will bring revolutionary changes in the country’s justice system by checking delays of cases, blocking false and vexatious cases and providing inexpensive justice.

The two bills -- Alternate Dispute Resolution Act 2016 and Cost Litigation Act 2016 -- have been laid before the National Assembly last month and now it is to be seen how long the legislature will take to enact these draft legislations.

The work on these draft laws started in 2013 within months after coming into power of the PML-N. However, the government did not show much keenness to look into such matters of people’s interest. 

The law ministry had proposed these draft bills in 2014-2015 but the cabinet approved them only weeks back following which these bills have been presented before parliament for enactment. In view of thefollowing which these bills have been presented before the parliament for enactment.

In view of huge backlog of cases in both subordinate and superior courts, the draft ADR Act 2016 presents a simpler and faster alternative which can supplement the traditional legal system. This system, it is hoped, will effectively settle disputes to overcome delays, provide inexpensive justice and reduce tremendous burden on courts.

The draft Cost Litigation Act 2016 is aimed at discouraging loads of unnecessary and frivolous litigation that our judicial system is presently faced with. The proposed law will lead to the payment of costs of litigation to a successful party for false and vexatious litigation against it.

Under the draft Costs of Litigation Act, 2016, the court shall have the power to determine by whom and out of what property and to what extent such costs are to be paid and recovered.

In cases where the court passes an order to effect that costs shall not follow the event, it shall state its reasons for such an order in writing. The draft law envisages that a court shall award costs of litigation to the successful party in the proceedings at the time of passing the judgment, final order or a decree.

As per the draft law, the costs decision could be given by a civil Court, High Court and the Supreme Court of Pakistan, Ombudsman, Federal/Provincial Service Tribunal(s), quasi-judicial tribunal and such other authorities or bodies including the regulatory authorities as the Federal Government may notify in the official gazette.

It is said that the tendency of filing false, vexatious and un-maintainable cases and taking baseless grounds for defenses is alarmingly on increase. This tendency leads to numerous evils involving heavy expenditure incurred by innocent persons causing them financial loss and mental torture apart from wasting the precious time of the courts. 

The draft ADR Act 2016 will introduce Punchayat and Alternate DisputeResolution system in the whole of Pakistan for the settlement of civil and criminal disputes within a period of 30 to 45 days.

The draft law provides solution to both the civil litigation as well as the compoundable offences. The proposed law envisages the involvement of respective high courts in the working of this system.

Under the proposed law, it would be mandatory to refer all civil matters including commercial, family, trade, insurance and revenue related to ADR or Panchayat for arbitration by panel of “neutrals”. 

The government after consultation with the High Court shall maintain a Panel of neutrals for each Province and each district from amongst lawyers, retired judges of superior and subordinate judiciary, retired civil servants, social workers, ulema, jurists, technocrats and experts and such other persons of repute and integrity having such qualifications and experience as prescribed.

Under the proposed law, the government could not remove a neutral once he is seized of the matter referred to him unless both the parties agree for his replacement or for any other reason(s) to be recorded in writing.

Once the court receives a case, it would direct the parties to appear before the neutral or Panchayat, as the case may be, on the date and time fixed by the court. If either of the parties applies to the court or ADR Centre for resolution of their pending dispute through ADR, the court or ADR Centre shall serve notice on the defendant or respondent, as the case may be, and on his appearance refer the matter to a neutral from the panel.

The parties to the dispute shall take part in the ADR proceedings in person or through an authorized representative duly empowered in writing attested by the oath commissioner.

A neutral appointed by the court or an ADR Centre for conciliation, evaluation or mediation shall try to resolve the dispute within a period of 30 days extendable by the court for sufficient cause for a period of fifteen days.

For disputes to be referred to arbitrator, the process would be completed within 60 days extendable for 30 days with the permission of the court. The arbitrator on resolution of the dispute shall render a written award, duly signed by him and by the parties or their authorized representative and submit it to the court which shall pronounce judgment and pass decree in terms of the award.

If the efforts of mediator fail in bringing about a settlement between the parties, the mediator shall submit a report to the court that appointed him and the court shall proceed with the case from the stage it was referred for ADR.

In the case of compoundable offences, the court with the consent of the parties may appoint a mediator from the panel or if the parties do not agree the neutral agreed by them outside the panel, to bring about compromise between the parties.

The mediator appointed in compoundable cases shall try to bring about compromise between the parties within 30 days and submit report in the court duly witnessed and signed by him and by the parties.

The government would set up ADR centre besides establishing a Panchayat system in accordance with the relevant law. The Panchayat shall be empowered for amicable settlement of civil and compoundable offences under the Code or any other law for the time being in force within the specified period.

According to the bill, the costs and fees of ADR shall be borne by the parties in such proportion as may be determined by the court.

The proceedings before the neutral shall be privileged and shall not be admissible in evidence before any court without consent of the parties and the neutral shall not be required to appear as a witness or otherwise in any arbitral or judicial proceedings with respect to a dispute that is or was the subject-matter of an ADR.

Similarly no legal proceedings shall lie against a neutral or any person or official associated in the ADR process for any act done or omitted to be done in good faith in the course of the performance of his functions, in reference to such ADR. No appeal or revision shall lie from a decree or order of the court under the proposed Act.