Alternative Dispute Resolution: A Paradigm Shift in Pakistan’s Justice System?
July 26, 2017
According to the World Justice Project’s latest Rule of Law Index, Pakistan ranks near the bottom in its ability to ensure protection of fundamental rights and advancing civil and criminal justice. Beyond the impact that this has on citizens, the challenges facing Pakistan’s justice system also impede economic development and drive inequality. Now a new initiative in Punjab province could offer a way forward for the country’s beleaguered justice system.
Pakistan’s justice system is stressed for a number of reasons, including insufficient budget allocations (less than one percent at the federal and provincial levels), lack of human and material resources to dispense speedy justice, corruption, nepotism, sub-standard legal education, and ill-equipped lawyers who lack practical skills and training opportunities. As a consequence, justice is often delayed or inaccessible, particularly for the poor and marginalized groups. There are currently over 1.7 million cases pending in the Supreme Court, high courts, and district courts. Further, the legal system is more often used for retribution rather than for justice, as individuals involved in legal suits frequently register counter-cases and other related cases out of retribution. Delays and pending cases also create stress, intolerance, and tension between the parties, which often escalates into further violence at the community level.
In September 2016, the situation deteriorated when hundreds of lawyers went on a strike in 36 districts of Punjab province to boycott the ineffectiveness of their own courts. The strike, which took place at different intervals and lasted a total of 1,474 days, ground the courts to a halt, leaving 1.5 million cases still pending in the lower courts. The crisis underscored the fact that Pakistan’s formal justice system as it exists today cannot provide adequate justice to individual citizens. It also brought attention to the possibility of a less expensive and time consuming alternative dispute resolution (ADR) process that could fill significant gaps.
ADR is used to describe a variety of means for resolving disputes outside of litigating in the courts, and is widely practiced around the globe and increasingly used in South Asia to promote speedy access to justice. In Pakistan, many disputes are still resolved through traditional methods of adjudication, such as jirgas or councils of elders. However, these traditional methods can be captured by power elites against the vulnerable, and lack quality control mechanisms, such as ethical rules to ensure neutrality and promote the core values of mediation, including a code of conduct. While legislative and executive support does exist to promote the use of ADR in conjunction with these other methods to reduce the backlog and burden on the courts, it has only recently taken hold.
In March, Lahore High Court Chief Justice, Syed Mansoor Ali Shah, opened the first judicially backed ADR center in Lahore city in Punjab. The mediation center has 36 highly trained judges who serve as mediators. The mediations follow a confidential and flexible process in which the mediator helps the parties understand the interests of everyone involved, and their practical and legal options. To date, the center has received a total of 209 cases out of which 141 have been successfully resolved, 27 failed, 18 dropped due to absence of parties, and two remanded back to the courts.
Judge Tajjamul Chaudhary, who presides over the center and also serves as a mediator, said that “several references at this center have been decided on the same day whereas the cases had been pending in courts for months.”
Following the success of this model, similar mediation centers have now been set up in all 36 districts of Punjab province. These newly established ADR centers are instrumental for people like 37-year-old Razia* who recently filed a suit for custody of her minor daughter, in affording equitable access to justice especially to those who remain bereaved of their just rights on account of financial constraints.
“It is incredible to see how cooperative and understanding the mediators are. They resolved my issue within days. The environment of civil courts was not very conducive,” Razia said. As a woman, she added “I found it very challenging to attend hearings. I had to pay a lot of money to lawyers yet the litigation was unnecessarily protracting. Referral of my case to the ADR center not only made my life easier but helped me come to an amicable settlement with my husband.”
The Asia Foundation has been working to mainstream the alternative dispute resolution process, and soon, will begin offering specialized training programs for lawyers and bar associations to expand capacity and garner greater buy-in from the legal community. The project aims to cultivate a distinctive cohort of community activists, including women, to work with communities to strengthen ADR forums at the local level. We will also carry out an outreach campaign via media groups and theatre performances throughout Punjab province.
As part of these ongoing efforts, we plan to replicate the model in other provinces and scale it up to the policy level for requisite legislative reforms. Mainstreaming of ADR is a necessity in Pakistan if it is to reduce inequality and expand rights to the marginalized segments of its population.
*Name changed to protect privacy.
The Asia Foundation’s Mainstreaming Alternative Dispute Resolution for Equitable Access to Justice project is supported by the U.S. Department of State’s Bureau of Democracy, Human Rights and Labor.
Zeeshan Ali is a team manager for The Asia Foundation’s Alternative Dispute Resolution Project in Pakistan. The views and opinions expressed here are those of the author and not those of The Asia Foundation or its funder.
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