Courts and panchayats

The people of Pakistan often use courts and the legal system to inflict misery upon their ‘enemies’ – and upon themselves. They resolve most of their disputes out of court, and turn to a police station or a court when they intend to teach someone a lesson. An elaborate trap awaits them as each litigant is a reliable milch cow for lawyers for years or even decades to come. Pakistan’s legal system remains stuck in colonial-era laws and traditions, because this situation suits the powerful sections of society, including the legal community.

A very significant initiative to reform this situation has been taken recently in Punjab. The Lahore High Court, under the leadership of Justice Mansoor Ali Shah, adopted Alternate Dispute Resolution (ADR) into the province’s judicial system by setting up an elaborate network of ADR centres in all 36 districts of the province. These reforms may have far-reaching consequences for Pakistan’s legal landscape and may provide huge relief to litigants and even improve the business climate in the country.

After serving the Lahore High court for eight years, Justice Mansoor Ali Shah was elevated to the Supreme Court of Pakistan last week. He leaves behind a glorious legacy. Without showing any inclination of populism, he has left his mark as a people’s judge. In my column on New Year’s Eve, I declared him the most influential person of the year, because he had liberated millions of Christian women from the vagaries of a Zia-era law, returning to them their basic right to seek divorce honourably. The ADR centres are his contribution to reforming the very structure of the country’s judicial system.

Alternative Dispute Resolution (ADR) is not a new idea. It refers to any means of settling disputes outside of the courtroom. Bishop Desmond Tutu took this idea to the level of national policy through his Truth and Reconciliation Commission (TRC) in South Africa. The TRC example is seen as a model of restorative justice and it has already developed into an effective global strategy for dealing with war crimes and other human rights abuses.

Bishop Tutu has elaborated his ideas and experiences in his book ‘No Future without Forgiveness’. According to him, he based his concept of reconciliation on the Bible and the African cultural traditions called Ubuntu. It appears that these concepts are universal, present in other religions and cultural traditions as well.

This is how he sets his concept of ADR apart from the Western form of justice: “One might go on to say that perhaps justice fails to be done only if the concept we entertain of justice is retributive justice, whose chief goal is to be punitive, so that the wronged party is really the state, something impersonal, which has little consideration for the real victims and almost none for the perpetrator. We contend that there is another kind of justice, restorative justice, which was characteristic of traditional African jurisprudence. Here the central concern is not retribution or punishment. In the spirit of ubuntu, the central concern is the healing of breaches, the redressing of imbalances, the restoration of broken relationships, a seeking to rehabilitate both the victim and the perpetrator, who should be given the opportunity to be reintegrated into the community he has injured by his offence.”

In fact, most traditional systems of justice work on the principle of restorative justice. Restorative justice is an approach to justice that personalises the crime by having victims and offenders mediate a restitution agreement to the satisfaction of each, as well as involving the community. It stands in contrast to the approach of the adversarial and retributive justice of the Anglo-Saxon law practised in legal institutions.

There are serious problems with the way traditional justice system is practised in Pakistan. It is prone to both elite capture and gender bias, and often serves sectional interests of those who hold authority in traditional jirgas or panchayats. However, many of the shortcomings of the ADR can be overcome by integrating it into the formal legal system.

It is estimated that around two million cases remain pending in various courts across the country, especially at the lower court level. In Punjab alone there is a backlog of 1.1 million cases while new cases add to the pile every day. With 1,771 judges to attend to these cases, the share for each judge exceeds 600 cases. The Lahore High Court saw ADR as a mechanism to resolve many of these cases and ease the burden on the judicial system. The ADR system is particularly suitable for business and property disputes, family matters and compoundable criminal cases.

Using a clause of the Civil Procedure Code (89 A CPC), the high court has set up ADR centres in each district. The first ADR centre was set up in Lahore in June 2017 and after the success of the experience, similar centres were set up in each district of the province. All mediation centres at the districts are purpose-built with mediators (judges) appointed to resolve cases. More than one hundred judges have been trained in mediation by accredited master trainers at the Punjab Judicial Academy.

The courts send cases for mediation to ADR centres with the mutual consent of the parties where opposing parties are brought together and facilitated to arrive at a settlement. If the dispute is resolved, the court turns it into a legal verdict and it is resolved permanently. Since June 2017, 13638 cases have been sent to ADR centres in various districts out of which 8564 have already been successfully mediated.

Applied in this way, ADR does not replace the formal litigation but serves as a tool for the courts to resolve disputes in an efficient, cost-effective and transparent manner. This example has shown that ADR mechanisms can help improve the efficiency and effectiveness of the court system by helping reduce case backlogs. The ADR system cuts down the complex formal procedures. It also reduces the high costs involved in the litigation process.

The ADR system can be improved by new legislation and procedures. While the Alternate Dispute Resolution Act was adopted by parliament in 2016, no effort has been done to implement it in the federal domain. A similar law is in the process of adoption by the Punjab Assembly. The legislatures in Sindh and KP are yet to take any concrete steps, although the tradition of ADR and its abuses are more common in these provinces.

The lack of an effective ADR system has also been a huge impediment to growth of business in Pakistan as breach of trust is too common and the available legal recourse is extremely expensive and time consuming. According to a World Bank study, economies with an integrated system of courts and ADR tend to have a more reliable judiciary, benefiting the courts, the parties involved and the economy as a whole.

I am pleased to welcome Justice Shah to my city, the capital of Pakistan. I must inform him that he need not run to Karachi to ensure availability of water. Each month, my cost of tanker water exceeds my expenses for petrol. But I would rather complain to the Capital Development Authority (CDA) and let Justice Shah do more important things. May the Force be with you.

The writer is an anthropologist and development professional.

Email: zaighamkhan@yahoo.com

Twitter: @zaighamkhan