Another way is possible – 18 Jul 2022

The constitution of Pakistan guarantees every citizen the right to a speedy trial but for the past many decades that right is only being recognized in the breach. There have been half-hearted attempts to solve the problem, such as making judges work longer hours, but there has not yet been the kind of institutional reform that is needed for the efficient functioning of the judicial system. One of the solutions that has been proposed includes increasing the number of judges – an idea which needs to be taken up since the number of cases being filed is overwhelming right now given the number of judges we have. Justices should also be more proactive in quickly dismissing frivolous suits and imposing punitive punishments on those who waste the courts’ time. A better and more timely intervention would be encouraging quicker alternatives to the cumbersome court system. In 2017, parliament passed the Alternate Dispute Resolution Bill. Although there was some controversy over the bill because of fears it would further empower jirgas and panchayats, the judicious use of alternative dispute resolution could reduce the burden on regular courts. At a time when the courts are becoming more expansive than ever – having involved themselves in matters of policy and governance – now is the time to take a step back and ensure that those who have been waiting for years finally get the justice they have been promised.

This has been articulately echoed by Justice Mansoor Ali Shah speaking at the Honourable Society of Gray’s Inn on ‘The role of judiciary in promoting investor confidence through ADR in Pakistan’. Justice Shah has rightly suggested that Pakistan badly needs an alternative dispute resolution system (ADR) for the future, in order to sort out the tens of thousands of commercial, investment, and other small time disputes often regarding business pending in the courts. Justice Mansoor Ali Shah has also pointed out that persuading and training lawyers to arbitrate and discuss matters rather than to engage in arguments could bring quick settlements and build confidence in Pakistan’s business system. Arbitration is already in place in Pakistan but the legal system will need to change, perhaps through a new law, in order to make it more effective and to encourage arbitration as widely as possible.

In theory, ADRs are meant to arbitrate disputes in a speedier and less expensive manner than regular courts. They have the added benefit, especially applicable in Pakistan, of unclogging an overburdened judicial system. The most important function may also be to bring a semblance of order to the unregulated jirga and panchayat systems. Right now, such alternatives to regular courts are widely used but they often hand out verdicts that contravene the constitution and the criminal code. The question is especially important in an environment where lawyers and judges frequently allow cases to linger for years at the expense of litigants because they do not turn up for hearings or do not hear the evidence at the right time. Certainly, in a country where thousands of cases remain to be heard, this could be one solution to the legal problems we face.

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