SEMINAR ON ACCESS TO JUSTICE AND ALTERNATE DISPUTE RESOLUTION*

LIST OF NOTIFICATIONS REPRODUCED IN THE <!--[if gte mso 9]> SEMINAR ON ACCESS TO JUSTICE AND ALTERNATE DISPUTE RESOLUTION* Address By Mr. Justice (Retd.) Saleem Akhtar, Federal Tax Ombudsman Access to justice is a fundamental right as guaranteed by the Constitution, Article 37(d) being one of the principles of Policy requires the Government to ensure inexpensive and expeditious justice. It is therefore the duty of the State to safeguard the fundamental rights guaranteed by the Constitution. Our civil justice system was linked with the executive and it did not receive proper attention and resources for its development and needs. Reforms suggested from time to time were half heartedly regulated and hardly there was any implementation. The civil society put its demands and pressures on judiciary but the needs of the judiciary to meet these demands were not even considered, the result was that the judiciary was clogged with large number of cases and became heaven for dishonest litigants, which developed inefficiency, delay and corruption. The exalted image of judiciary and trust reposed in it was its hall mark, but it started waning and put the people to think for reform and alternate remedies for resolution of disputes. This does not mean that the judiciary as an institution lost its efficacy and confidence but with the passage of time it has eroded. The scientific developments, growth of population, trade, industry and commerce, the migration from rural areas to urban areas, growing regulatory legislation, adhocism, lack of implementation and respect for law, all collectively gave rise to conflicting vested interest impigning on the rights of people who felt aggrieved by Government policies and actions. The wants, aspirations and acquisitions developed conflicts among individuals which multiplied in number and variety. Such situations always create complex conditions and every one looks towards the judiciary for the resolution of" disputes. The Government and administrators gave thought to amend the laws and bring some reforms but they were insufficient and inefficient. Various provisions for settlement of dispute through conciliation and mediation though introduced remained un‑implemented or inoperative. *Organized by Supreme Court Bar Association at Islamabad. 2. The adversarial justice system promotes formalism, accuracy and procedural technicalities which create delay and leads to frustration. The result is that common people are increasingly growing dissatisfied with judicial adjudication of their every day conflicts. One of the main reason for delay and clogging of Court docket is filing of petty and trivial cases which do not have much social significance. Also added to it is the arbitrary orders passed by the administrators. Partly to blame for these problems is the lack of access to any other forum for settlement of these minor disputes. Protraction of judicial proceedings are not uncommon in any part of the developed and developing countries which has led to the birth of "the term `intergenerational justice as meaning the inability to secure justice in one's own life time". It has become proverbial if not real. 3. These prevailing conditions in judicial administration which are product of adversarial system have led to a shift from formal system for redress of citizens grievances to more informal ways of resolving disputes. Informal dispute resolution procedures are defined as those "which have the non‑bureaucratic structure and make minimal use of legal professionals". Now world over civil justice system ‑is heading towards informalism. In such a system "the grievances are to be resolved informally before they harden into disputes". In every society justice emanates from home level, from family, from neighborhood and then from locality to locality. It is inherent to man to create conflict and also to resolve the disputes but when the disputes enter into legal system the question arises whether it should be resolved formally or informally. The choice is to be made by the disputant parties. If a system subordinate and parallel to the judicial and legal system is developed and confidence and trust is created together with awareness amongst the people, it is bound to attract attention to deal with petty disputes and minor discords. The, advantages in this informal system have been noted as increased efficiency, curtailment of expenses of the Government and civil litigants, quick and inexpensive justice, the development of confidence and elimination of hostility between the parties, privacy and secrecy. On the other hand experience shows that formal dispute resolution creates hostility and too much involvement of rules and expertise. It is inaccessible and narrow. In informal resolution of disputes the disadvantages are:---- (i) At times flexibility permits unfairness amongst the disputants, decision can be impartial, irrational and inconsistent. (ii) Important public cases and involved civil and human rights issues can not be resolved by private mediation. The critics have viewed that more emphasis on informal resolution of disputes may interfere with right to seek justice through Courts. 4. Having considered the nature, merits and demerits, of informal resolution of disputes system, it is proper to understand its modalities. The first step is conciliation, second mediation, and third arbitration. . 5. Conciliation is a voluntary act of the two disputants but in certain cases a third person or authority brings together the disputants and sometimes attempts to arrive at a settlement or moves them to settle amongst them freely. I will briefly mention that mediation is a private voluntary and informal process where parties select neutral persons to assist disputants to reach mutual acceptable resolution. The third party calling mediation brings the parties together to negotiate and he facilitates the resolution of disputes with his knowledge and understanding of the dispute and the legal implications and attempts to successfully carve out settlement with the consent of the parties. In many countries like Phillipine, Sri Lanka, Singapore, USA, Western European Countries etc. ADR techniques are now fairly developed and in other countries it is being followed. The United Nations has ‑ provided a standard draft statute called United Nations Commission on International Trade Law (UNCITRAL) which also provides for mediation and arbitration. In Pakistan also specialized laws have provided for mediation but perhaps they have not been practised properly and have not brought about the desired results. I am told that the recent amendment in O.X, C.P.C. where applied by judges trained in ADR techniques has yielded positive results. It must be encouraged. 6. In Pakistan arbitration is governed by Arbitration Act, 1940 and foreign arbitrations are governed by Protocol Arbitration Act, 1937 but there are shortcomings in our law. The Arbitration Act is more rule related and connected with the Courts. The shortcomings in resorting to arbitration are as follows:‑ (i) Control of Court on arbitration proceedings and arbitrator particularly on question of jurisdiction and appointment of arbitrator and confirmation of award which cause delay. (ii) Cost is not less than Court litigation. (iii) Absence of provision for mediation and conciliation in the statute nor there is any centre for mediation, conciliation and arbitration or training facility. (iv) Appeal proceeding provided by Act takes not less than 3 to 4 years in urban centres. There is a growing feeling among the leading arbitration practitioners that in cases where the final award is made by a retired Judge of the Supreme Court or the High Court it may be treated as a decree to be executed by the Court having jurisdiction to execute such, decree is passed in a suit by a Court. All objections should be heard al that stage. (v) Proceeding for appointment of Arbitrator raises complex issues and causes delay. In this regard UNCITRAL Model Law, viz. Articles 10 and 11 may be followed. In India. Arbitration Act, .1996 has followed it. (vi) Under the Act arbitrator has no power to decide his own jurisdiction. It should be streamlined. (vii) Under the Act arbitrator has no power to pass any interim order to restrain any party or to protect the property in dispute. Such power should be vested with the arbitrator. So is the provision in the UNCITRAL MODEL LAW. (viii) In case where two arbitrators are appointed who nominate the Umpire or the third arbitrator provision should be made to make it compulsory that all the three arbitrators hear the case jointly. Normally unless provided in the agreement, only two arbitrators hear the case and if there is a difference of opinion the matter is referred to the Umpire which causes a lot of delay. By providing as suggested above much of the delay will be curtailed. (ix) Under the Act time limit of four months has been fixed for making the award which is unrealistic. It should be fixed at 9 to 12 months. 7. My experience as Federal Tax Ombudsman is encouraging. As provided by section 33 of the Establishment of the Office of Federal Tax. Ombudsman Ordinance, I have succeeded in bringing about settlement of Tax disputes between the tax payers and Revenue Authorities through mediation and conciliation. If this technique is employed it is bound to provide the judiciary a breathing time to advert to serious issues leading to quick disposal. But it can only happen if awareness is created in public and judiciary alike to discourage adversarial system and adopt ADR. Credibility has to be established which can be achieved by employing Judges on professional basis, remodel the training system which should tie visionary, welfare and result oriented with eye on the future. The first step should be to delink the subordinate judiciary from the grade system. Judiciary having separated from executive must have its own salary structure for the subordinate judiciary ranging from Rs.30,000 to Rs.45,000. Unless bold and dynamic steps are taken to reform and care for the judiciary do not expect any better improvement. To eliminate corruption and inefficiency from subordinate judiciary Service Laws which govern the Civil Servants should not be applied and new Service Law should be framed for them by creating a Judicial Council in the nature of Supreme Judicial Council which should deal with disciplinary cases. Secondly Arbitration Act should be scrapped and a new law like UNCITRAL model law be framed. And the last word, cultivated mutual respect for judiciary and Bar, only then you can achieve justice, fair play, confidence and trust.