Speedy injustice

Over the years, the state in Pakistan has surrendered some of its key functions to the private sector. Education, health and housing instantly spring to the mind as examples of areas where the private sector has stepped in. Now it appears that the state is taking its hands off, fulfilling what is arguably its most vital responsibility: providing justice to the people.

This is evident from the ADR Bill, 2017, which was recently passed by the National Assembly. The proposed statute – which will initially apply to the federal capital only – aims to provide speedy and inexpensive justice to people by replacing formal litigation and adjudication by the courts with alternative dispute resolution in the scheduled category of cases. The avowed objective is one with which no one, for sure, can disagree. Justice is the securest basis of any society and the dispensation of justice in a timely and hassle-free manner is important. However, the mechanism described in the new legislation – through which the government is seeking to carry out this function – is dubious.

The law provides that every civil matter on the prescribed list shall be referred by the relevant court for alternative dispute resolution – except where either party to the dispute does not agree on the stipulated mechanism or where an ‘intricate’ question of law or fact is involved. For the matter at hand, the court will either appoint a neutral or refer the case to an ADR centre set up by the federal government. The government will appoint a panel of neutrals in consultation with the high court from among a cross-section of society – including retired judges, civil servants, lawyers, ulema, technocrats, social workers, and persons of repute and integrity.

In the event that the parties to a dispute do not agree on a neutral, the court will appoint one by using its discretion. If the parties agree on the ADR before initiating judicial proceedings, they can submit an application to the court or an ADR centre to that effect. The neutral will dispose of the matter within 30 days, which may be extended by another 15 days.

The neutral will be expected to apprise the court of the settlement reached. The court will subsequently pronounce the judgment or decree. In the event of the failure to settle the dispute through the ADR, the case will be taken up by the relevant court. A similar mechanism will be adopted for the ‘voluntary’ compounding of a compoundable offence, culminating in the court’s order to discharge the accused.

The provisions of this act will apply to both the settlement of civil disputes and compounding of offences by panchayats or jirgas. The ADR law will have an overriding effect over other laws. It covers 22 categories of disputes or offences, including land and property disputes, family disputes – such as the dissolution of marriage, etc – companies and banking matters and disputes relating to intellectual property rights, personal injury, compensation and damage suits. There will be no appeal against the decisions or decrees announced under the ADR. As a result, the court’s decision – based on the neutral’s report – will be final.

There is no doubt that justice delayed is justice denied. But when we speak of speedy justice, the act of handing down justice invariably precedes the time taken to do so in order of priority. Any dispute or conflict resolution arrangement must, first and foremost, be based on equity. It would be good if the matter is resolved expeditiously. However, no such arrangement becomes just and therefore worthy of pursuit merely because it operates on a fast-track basis. In fact, justice is, at times, the first casualty in a specially designed, fast-track approach to justice. This is why the due process of law is universally regarded as a sine qua non for a fair trial.

By the same token, dispute resolution ought to cause minimum hassle to the parties, especially in terms of pecuniary considerations. A judicial system in which the prospects that the plaintiff or the respondent hold to seek justice depend on their ability and willingness to spend is unjust. But no dispensation can be considered just merely by virtue of the fact that access to it does not create a hole in the parties’ pocket. The inexpensive or expeditious dispensation of justice is important but only on a secondary level. Justice, and justice alone, has primacy.

Panchayats and jirgas – which have been in vogue in different parts of the country for centuries – put high premium on speedy and inexpensive settlement of disputes. But whether their outcome is, more often than not, just is anybody’s guess. Decision-making in these institutions is based on local customs rather than the law of the land.

Although the law develops from customs, it must be progressive and reflect cultural and economic developments in the society within which it operates. That is the reason the growth of law always outpaces that of customs. In a polity, it is the law, and not customs, that should reign supreme.

Panchayats or jirgas by virtue of their composition and the essential outlook of their members are regressive. Their concept of justice is primitive. A murderer is penalised by marrying off his daughter or sister into the victim’s family. Rape may be punished by authorising another such incident. The verdict and its execution may take only a few hours. It is ostensibly women – who are related to the convict – who, in most cases, bear the brunt of the tribal sense of justice.

The constitution grants special status to the federally and provincially administered tribal areas in Khyber Pakhtunkhwa and Balochistan. Article 246 stipulates that no federal or provincial law applies to these areas without the approval of the president or governor, as the case may be. Likewise, neither the Supreme Court nor the high courts can exercise any jurisdiction in relation to the tribal areas. Our lawmakers, it seems, are enamoured of the tribal sense of justice and have left tribes their own devices. This amounts to turning their back on injustices perpetrated in the name of long-held, sacrosanct traditions.

With regard to urban or settled areas, a large number of disputes involve the ownership of property. It has become a common pattern. A land mafia occupies a piece of land. The aggrieved person goes to the police station but his grievance is not redressed. Frustrated, he seeks the help of influential people in the area and is advised to bargain with the same people who took his property by force. ADR is therefore already informally working in such cases. When the ADR statute comes into force, such mediation or conciliation will obtain legitimacy. It is not difficult to surmise who the beneficiary will be and at whose expense the law will function.

The Taliban, it may be recalled, partly owed their rise to the speedy and cheap ‘justice’ that they would dispense. Such accounts – real or fictional – have formed an important component of the pro-militancy narrative. The gist of the narrative is that the present legal and constitutional system of Pakistan is not only ‘un-Islamic’ but also rotten to the core and must be replaced with jirgas and such other institutions which the Taliban represent. Is the state unwittingly buying into this narrative by enacting the ADR legislation?

The writer is a freelance
countributor.

Email: hussainhzaidi@gmail.com