SEMINAR ON ACCESS TO JUSTICE AND ALTERNATIVE DISPUTE RESOLUTION

LIST OF NOTIFICATIONS REPRODUCED IN THE <!--[if gte mso 9]> SEMINAR ON ACCESS TO JUSTICE AND ALTERNATIVE DISPUTE RESOLUTION ADDRESS By Mr. Justice Nazim Hussain Siddiqui Chief Justice of Pakistan [22nd May, 2004] Mr. Justice Iftikhar Muhammad Chaudhry, the senior puisne Judge; Hon'ble Judges of the Superior Courts; Mr. Tariq Mehmood, President, Supreme Court Bar Association; Distinguished Guests! Ladies and Gentlemen: It is a pleasant experience of addressing this seminar on "Access to Justice and Alternative Dispute Resolution" organized by the Supreme Court Bar Association. I congratulate the organizers on selecting a very important topic for this seminar. The speakers preceding me have very ably dilated upon various aspects of alternative dispute resolution (ADR). I am sure, today's discussions and deliberations would go a long way in enabling legal and judicial fraternities to work on ADR. If ADR is successfully practised, it will certainly enhance access to justice. The members of the Bar, in particular of the Supreme Court Bar Association, have an arduous and sacred duty of assisting the Court of ultimate jurisdiction in the administration of justice. Their initiative depicts their seriousness with which they are engaged in the performance of their professional duties. Mr. President! After I had given my consent to preside over the function, I thought of the objective to be achieved by the address I was going to make on the occasion. My ruminations brought two things to perception. First, the people whom I am going to speak to are, by and large, members of the judicial and legal fraternities and therefore concerned with the subject. The second is the exact import of the topic for discussion in the seminar. What readily comes within the range of cognition is that the seminar purports to discuss the role that can be played by ADR to facilitate access to justice. This construction obviously limits the scope of discussion. Organized by the Supreme Court Bar Association at the Supreme Court Auditorium, Supreme Court Building, Islamabad. To add to what the learned speakers have already said on the subject of ADR, I would first quote Chief Justice Warren Burger of the United States, who, while speaking at an American Bar Association Conference on the resolution of minor disputes, stated:‑‑ "the notion that ordinary people want black‑robed Judges, well dressed lawyers and fine‑paneled Courtrooms as the setting to resolve their disputes isn't correct. People with problems, like people with pains, want relief and they want it as quickly and inexpensively as possible." In the foreign context, ADR is a generic term, which refers to wide array of practices the purpose of which is to manage and quickly resolve disputes at less expense and with as little adverse impact as possible on business and other relationships. It is out of Court settlement of disputes through various modes such as arbitration, mediation, conciliation, early neutral evaluation, facilitation, etc. ADR is a relatively new term for dealing with an age‑old problem the problem of heavy backlog, the problem of delayed resolution of disputes, the problem of expensive litigation. In a broader sense, ADR offers certain advantages, such as:‑‑ It offers quick resolution of disputes, through flexible procedure, which is cost‑efficient and brings about greater amity and understanding between the litigant parties, which is not possible in adversarial Courtroom battles; The mechanism offers significant relief to the Court. It increases access to justice for people who cannot or will not use the Court system to resolve conflicts in culturally appropriate ways; It offers wide range of remedies to suit the dispute in hand; It is being successfully practised in the advanced countries such as UK and USA. In the UK, in the aftermath of Lord Woollf's Report on the Civil Procedure, and following the necessary enabling provisions to their Civil Code, the ADR is now an important tool for resolution of disputes and it has become mandatory before the parties commence litigation. U.K. and USA, of course, have the necessary infrastructure facilities and a network bf trained lawyers to do the job to the satisfaction of the parties. The criticism against ADR includes de‑professionalization of decision‑making, the stronger or more knowledgeable party will dominate the proceedings, etc. Again in the foreign context, where ADR is successfully employed. following factors are considered as a checklist in determining which alternative procedure is best for a particular dispute:‑‑ The nature of the relationships between the parties; The issues involved; The business environment; The present posture of the case; Further costs of resolving the dispute through litigation; Concern for privacy; Relationship with outside attorneys; Likelihood of settlement; If settlement is not achieved, will the procedure affect subsequent litigation? The foreign models of ADR, which are working successfully, have not taken the present shape in the blinking of an eye. They took long times before being acceptable and reliable methods of dispute resolution. In the United States, beginning in the 1970's the emphasis in discussion of extra judicial methods of dispute resolution turned to the need to alleviate the inaccessibility of judicial relief for poor and even middle‑class individuals by providing less expensive and less formal methods of resolving disputes The academic community became increasingly aware in the 1970's of the need to study and teach non judicial methods of dispute resolution. By the mid‑1980's, however, the emphasis had changed somewhat. By then, much of the ADR literature dealt with mini‑trials to resolve large corporate disputes, the use of private 'rent a judges' mediation in divorce proceedings and methods to speed up, as well as limit recovery in medical malpractice claims. A common thread connecting these more recent ADR methods is to provide confidentiality and limit the legal expenses of parties regardless of their economic brackets. Thus, some Federal Courts in United States have gone on record as favouring the initiation of alternative formulas for resolving disputes, saving costs and time, and permitting the parties to utilize creativity in fashioning non‑coercive settlements. Among recent arguments advanced for the use of ADR methods is that if alternative dispute resolution succeeds, it will generally result in huge savings to a corporate client, but even if it fails, the money spent on ADR is not lost because, in the course of using such alternative methods, the issues are bound to be narrowed. The position in Pakistan is that there are numerous laws, which provide for alternative dispute resolution: Muslim Family Laws Ordinance 1961 and Family Courts Act 1964 provides for arbitration in matrimonial disputes, pre‑trial and post‑trial conciliation between spouses in a suit for dissolution of‑marriage, settlement of maintenance etc. Similarly, the Conciliation Courts Ordinance 1961, prescribes full fledged mechanism for out of Court settlement of certain categories of civil disputes and criminal matters. Following recommendations of the Law & Justice Commission of Pakistan, the Government in the year 2002, amended the Code of Civil Procedure 1908, thereby adding to it a new Section i.e. Section 89A, which empowers the Court to adopt, subject to the consent of the parties, any suitable method or procedure including the use of ADR to settle any dispute. In the same way, a complementary addition was made to Order X of the C.P.C. through addition of Rule 1A, thereby empowering the Court to conduct preliminary proceedings and issue necessary orders for expediting the process of trial. It further empowers the Court to issue commission, to examine witnesses, admit documents and take other steps necessary for the purpose of expediting trial proceedings. The same year, the Government also promulgated the Small Claims and Minor Offences Ordinance. A special feature of this statute is the summary procedure prescribed for trial and out of Court settlement of disputes through arbitration, mediation, conciliation, etc. The salient features of the law are: (1) The Government, in consultation with the High Court, shall establish the Small Claims and Minor Offences Courts at the District/Tehsil level. A Civil Judge‑cum‑Judicial Magistrate to be designated by the respective High Court shall man these Courts; (2) The Court shall try specified civil suits e.g. suit for recovery of money, damages, enforcement of contract, recovery of movable property, enforcement of easement rights, removal of nuisance, etc of the value of one hundred thousand rupees or less. Such value can be varied by the respective High Court, in keeping with the objective conditions of a particular District/Tehsil; (3) The Court shall also have jurisdiction to decide offences under the Pakistan Penal Code 1860, where punishment prescribed does not exceed imprisonment for up to 3 years or fine or both; (4) A simple, more specific and expeditious procedure for process serving has been prescribed in order to finalise the case for trial; (5) In appropriate cases, the Court shall persuade the parties to reach an amicable, out of Court settlement, of their dispute. A detailed procedure for conducting settlement proceedings is prescribed. Each such Court shall maintain a panel of arbitrators, mediators and conciliators, prepared by the respective High Court in consultation with the District Judge and President of the local Bar Association. In case any such settlement is arrived at, the same shall be enforced as a decree or order of the Court; (6) In the event of failure of ADR proceedings, the Court shall proceed to determine the suit through prescribed summary procedure, ordinarily to be decided within 60 days; (7) In criminal cases, however, the Court shall conduct regular trial and follow the procedure prescribed in the Code of Criminal Procedure 1898 and Qanun‑e‑Shahadat, 1984; (8) With a view to expedite the proceedings, the Court shall have power to enforce the attendance of any person, compel the production or discovery of any document, carry out local inspection and issue commissions for examination of witnesses or documents; (9) The patties shall be required to appear before the Court on specified date and time and also ensure the attendance of their witnesses. In case of deliberate default on the part of plaintiff, the Court may dismiss the claim/suit. Similarly, in case of deliberate default on the part of defendant, the Court may proceed ex parte. Any such order of the Court may be set aside subject to good and valid cause shown; (10) On the conclusion of the trial, the Court shall execute the decree through simplified procedure; (11) Appeal against the decree/order shall lie to the District & Sessions Judge provided that there shall be no right of appeal against a consent decree; and (12) The High Court is empowered to amend the Schedule, thereby adding to or deleting from any matter in the Schedule. Furthermore, the High Court may, from time to time, make rules for regulating the procedure of the Court. At this juncture, let me state that necessary legal framework for ADR in Pakistan is laid down. A common problem in our country, however, is that laws are made but not fully implemented. ADR requires not mere legislation but several other measures for its implementation. Such measures include the orientation and training of Judges, the motivation of lawyers to persuade their clients for an amicable settlement, public awareness to inform the litigant parties to avail the ADR and the contribution of civil society and NGOs to establish necessary forums for conducting amicable settlement proceedings. This seminar is a right step in creating a culture of ADR among the Judges, the lawyers and the litigants. The role of the bar in this respect is vital. They should pave the ground for an. ADR culture suited to our environment. The Bar Associations should groom lawyers to act as mediators and settle the disputes with neutrality and impartiality. The services of Federal Judicial Academy can be utilised for the training of Judges and lawyers in various processes, methods and procedures of amicable settlement of disputes. As in other walks of life, we are far behind the advanced world in this very matter as well. We are at a stage where we need to make more beginnings. We should not be afraid of making mistakes. Mistakes are an essential part of the process of learning. The implementation of this law was delayed because the High Courts required the necessary manpower to effectively implement the law. Funds are given to the High Courts, under the Access to Justice Programme, for suitable increase in the strength of Judges and Court staff. Furthermore, judicial complexes are being constructed and infrastructure support and equipment to Courts is underway. I am glad to say that the issues relating to implementation of this law are on the agenda of the forthcoming meeting of the National Judicial (Policymaking) Committee in which the pros and cons of the implementation of the law will be examined and decisions taken to establish these Courts. Delay in civil litigation or criminal matters, is neither new nor unique in the context of Pakistan. It is an old and chronic problem of global dimension and has been consistently faced by the principal legal systems of the world. Even the most advanced legal systems, USA and UK included, lament over backlogs and prolonged delays. Delay is inherent in a judicial system based on law. It is so because such system meticulously guards against any injustice or miscarriage of justice to an individual. Voluminous substantive and procedural codes are prescribed, which are supposed to facilitate the quick dispensation of justice. Regrettably, they are often employed as tools to delay trial proceedings and thereby deny relief or remedy. Instead of narrowing down the issues on which the parties are at variance, the controversies are unnecessarily widened through lengthy arguments. Thus, valuable time of the Court and the lawyers that they can use to deal with other cases is wasted and the backlogs pile up. As a direct result, significant majorities of people do not have access to justice. It then becomes the task of the Bench and the bar, proverbially the 2 wheels of the chariot of administration of justice, to join hands and work in unison for removing the obstacles in the access to justice, for simplifying the laws and procedures to facilitate expeditious disposal of cases and thereby facilitate access of larger number of people to justice. One the part of a Judge, I must say that unless a Judge is a good listener, he cannot be a good Judge. We have all the time in the world to hear cases. And that is what we do while sitting in Court. But we cannot be unmindful to the long queues of dockets awaiting hearings. We have to per force make adjustment of our time. Given the state of pendency in our Courts, the biggest challenge before us is to distribute our time among the litigants lest they are deprived of their valuable rights for want of hearing. Correlated with the above is the tendency to take every controversy even under family/rent laws, to say the least, to the highest Court. Invariably, ejectment disputes coming to the Supreme Court end up in granting some more time to the tenant to vacate the premises. Granting more time to a tenant never involves a legal question requiring interpretation by the apex Court in the exercise of its jurisdiction under Article 185(3) of the Constitution. Every interim order passed by trial Court is challenged up to the Supreme Court level. This tendency is undercutting the system of administration of justice. On the one hand, the proceedings at the lower forum get stuck up and on the other, the dockets of the higher Courts are increased unnecessarily. I call upon the legal fraternity to devise ways and means whereby the controversies are moved from a lower Court to a higher Court in a systematic way after they are completely and finally settled in one forum. I encourage you to hold the next seminar on this issue, which is not allowing our legal system to successfully work. Let me assure you that in every effort you make at improving the system of administration of justice, you will find me in your midst. Let us march together in our journey and our common goal of improving access to justice. Thank you very much.