WELCOME ADDRESS

LIST OF NOTIFICATIONS REPRODUCED IN THE <!--[if gte mso 9]> WELCOME ADDRESS By Mr. Tariq Mehmood, President, Supreme Court Bar Association [22nd May, 2004] Worthy Chief Justice, Honourable Judges, Ladies and Gentlemen: A life free of disputes is a great fortune. Unfortunately, we are often faced with disputes, at times within our own families, or with our neighbours and in the community. As we achieve great advances in other fields, we fail to find peace within our inner selves because of life challenges. Some disputes are simple and others serious. Most often, disputes start with small issues. And when these are not resolved at the initial stage, suspicion, misunderstanding and wrong perceptions make the issues more serious. The result is hatred, distrust and further disharmony. Disputes invariably lead to physical and emotional injury and sometimes death. It is sad indeed that we should allow such an end. To resolve disputes, every country has a judicial system. We started our journey with Village Panchayats Acts and a black law, known as F.C.R. later on, in certain areas, a special system of civil disputes and trial of criminal cases was introduced on the grounds that it was inexpensive, speedy and more suitable to their requirements and in consonance with the special conditions prevailing in the said area. However, the same was repealed or struck down inter‑alia on the ground that it was in conflict with fundamental rights guaranteeing equality before law. Right of access to justice was held to be a fundamental right guaranteed under Article 9 of the Constitution in Sharaf Faridi's case PLD 1989 Kar. 404. The principle was approved by the Honourable Supreme Court in the case of Azizullah Memon PLD 1993 SC 341 and it was held that right of access to justice means that every citizen should have equal opportunity and right to approach the Courts without any discrimination. In the case of Al‑Jehad Trust PLD 1996 SC 324. Honourable Supreme Court went further to lay down that this right will be meaningless without having, an independent judiciary. This rule was quoted with approval in the case of Malik Asad Ali PLD 1998 SC 161 and it was observed that existence of this right is dependent on the independence of judiciary. However, in spite of above judgments, decisions; based upon outdated tribal values and customs, were being given by JIRGAS, which not only shocked the nation but is a proof of failure of our Judicial system and writ of the Government. Judgments include killings of couples for getting married without the consent of their families, ordering girls and women to parade naked, authorizing the public gang‑rape of a girl in Meerwala Jatoi because her minor brother was suspected of having an affair with a girl belonging to an influential class, forcibly giving away in marriage young girls as compensation for the murder committed by a male member of a family, killing men and women and labeling them `Siahkari' and `karokari'. And, it is sorry state of affair that recent judgment of Sindh High Court, declaring the holding of JIRGAS and. dispensation of justice by such bodies is illegal and violation thereof amounts to contempt of the Court; is being considered as a first step towards right direction. Ladies and Gentlemen! It cannot be ignored that the number of cases filed in Courts have shown tremendous increase in recent years for a variety of reasons resulting in pendency and delays. It would not be irrelevant to point out that number of cases pending in subordinate Courts of Punjab are more than one million. The pendency in the Supreme Court is far from satisfactory and presently 21298 cases are pending, which figure is slightly lower than pendency in the Supreme Court of India, India which has population of more than one billion. Moreover the object of the Arbitration Act of 1940 was to give expeditious relief to the parties concerned but unfortunately it proved in effective for early settlement of disputes by arbitration. Government Departments and statutory bodies are chiefly responsible for it as they insert an arbitration clause in the agreements and also nominate an officer of their choice as sole arbitrator. But in case award goes against them, instead of accepting it, rushes to the Courts with frivolous objections, which not only result in delay in the settlement but also wastage of time by Courts. It is also amazing that awards given by retired Judges of High Courts and Supreme Courts are tiled in the Court of Civil Judges to make them rule of the Court or otherwise. And, it takes decades to decide. In the background, we are justified to say that majority of the people are denied or cannot have justice for reasons including: (1) Huge pendency of cases in Courts and low strength of Judges, particularly in the subordinate Courts. (2) Distance from a Court. (3) Inability to secure adequate legal representation. (4) Costs involved. (5) Lack of information. (6) Establishment of Special Courts where every ; time question of jurisdiction is raised and takes decades to resolve. (7) Lack of communication and language barrier. (8) Working conditions in subordinate Courts. (9) Extremely low salaries of subordinate Court's Judges. (10) Lack of proper training to subordinate Judges. (11) Lack of knowledge and interest by the subordinate Judges and lawyers in screening out false and frivolous case at the very outset. (12) Integrity and calib of Judges and mode of their appointment. (13) Lack of commitment in most of the Judges to administer speedy justice. (14) Defective investigation, whether on account of incompetency or dishonesty. (15) Integrity and calib of State Counsel, criteria of their appointments and lack of sense of responsibility. (16) Tendency of lawyers to prolong the matter and mislead the Courts. (17) Tendency of filing misconceived appeals and petitions in Superior Courts. (18) Toutism. (19) Exploitation including face or nuisance value of a lawyer or alleged connection with a particular Judge. (20) Discrimination against women and oppressed classes. (21) Stigma surrounding certain crimes. So, it appears that for the common than in Pakistan access to justice is almost, impossible. Corruption, favoritism and nepotism rampant in the judiciary as well as legal community. Our legal system has been rendered uncaring, non accountable and formalistic. At the most it delivers formal or technical justice and it is oblivious of the suffering and woes of litigants of their waste of money, time and energy and their result is much worse than winning it. Even if they win a case, they lose a good part of their fortune. The prime lower in the events is judicial system as people have‑lost faith in it and they are of the view that it cannot deliver justice. Other day, while addressing newly trained District Judges at the Federal Judicial Academy, HCS remarked that delay in dispensation of justice erodes the confidence of the litigants and public in the administration of justice. On a deeper analysis it is the collective responsibility of all concerned, who are contributing towards the delays in getting justice. However, it is clear that Courts are not in a position to bear the entire burden of justice system, despite un productive spending of millions of $ in Access to Justice Programme. Perhaps legislature has also realized the alarming situation and it was for such reason that section 89‑A and Rules 1A to Order X have been added in C.P.C. to adopt alternate dispute resolution. As regards the A.D.R. this is an are, which is very much being practised amongst western and neighbouring countries, but the success of this in our system would entirely depend on the honest approach and readiness amongst litigants and lawyers to the resolution of dispute, which is rare and will have to be generated. Our success will depend upon the way we motivate and dedicate us. Ladies and gentlemen, I on my behalf and on behalf of Supreme Court Bar Association welcome you in this Seminar on "Access to Justice and Alternative Dispute. Resolution" We will have a rare opportunity of hearing eminent Judges and jurists and may be we are able to point out some solution. There will be numerous issues which may arise, but following few questions are lurking in my mind, which may need your attention:‑‑ A. Why are people denied access to justice? B. Whether A.D.R. undermines or replace the formal judicial system of justice? C. However hard the Judges may strive, whether A.D.Rs. have become inevitable? D. Whether A.D.R. should be made mandatory to a class of civil cases? E. Whether women and oppressed classes would get justice through A.D.R. in a male dominated society; governed by influential people? F. Whether petty criminal disputes can also be dealt with through A.D.R.? G. How to raise public awareness? H. How to provide a basis for sensible case management? J. How to train mediators, arbitrators, conciliators and evaluator or neutral? K. Role of the lawyers in A.D.R.? L. Whether A.D.R. should be included in educational curricula? M. What role Government can play, which is major litigant party and in large number of cases is responsible for the litigation and its delay? N. Whether Arbitration Act of 1940 should be replaced or be drastically amended to achieve its object? P. How to make A.D.R. sustainable? Q. How to save and strengthen the existing system of justice? R. What other steps can be taken to release the burden of Courts? In the end, I am grateful to the Honourable Chief justice, Judges of the Supreme Court, distinguished guests and members of the Bars, without whom, it was not possible to arrange this Seminar. I am also grateful to British Council for their grant of Rs.50,000, which supported us in organizing this Seminar. Thank you.